In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER
v.
ANTONIO J. MORRISON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI
(VOLUME 1)

SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
BARBARA MCDOWELL
Assistant to the Solicitor
General
MARK B. STERN
ALISA B. KLEIN
ANNE MURPHY
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

APPENDIX A
UNITED STATES COURT OF APPEALS
FOURTH CIRCUIT

Nos. 96-1814, 96-2316
CHRISTY BRZONKALA, PLAINTIFF-APPELLANT

v.

VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY; ANTONIO J. MORRISON;JAMES LANDALE CRAWFORD, DEFENDANTS-APPELLEES
AND
CORNELL D. BROWN; WILLIAM E. LANDSIDLE, IN HIS
CAPACITY AS COMPTROLLER OF THE COMMONWEALTH, DEFENDANTS
LAW PROFESSORS; VIRGINIANS ALIGNED AGAINST SEXUAL ASSAULT; THE ANTI-DEFAMATIONLEAGUE; CENTER FOR WOMEN POLICY STUDIES; THE DC RAPE CRISIS CENTER; EQUALRIGHTS ADVOCATES; THE GEORGETOWN UNIVERSITY LAW CENTER SEX
DISCRIMINATION CLINIC; JEWISH WOMEN INTERNATIONAL; THE NATIONAL ALLIANCEOF
SEXUAL ASSAULT COALITIONS; THE NATIONAL COALITION AGAINST DOMESTIC VIOLENCE;THE NATIONAL COALITION AGAINST SEXUAL ASSAULT
THE NATIONAL NETWORK TO END DOMESTIC VIOLENCE; NATIONAL ORGANIZATION FOR
WOMEN; NORTHWEST WOMEN'S LAW CENTER; THE
PENNSYLVANIA COALITION AGAINST DOMESTIC VIOLENCE, INCORPORATED; VIRGINIANATIONAL ORGANIZATION FOR WOMEN; VIRGINIA NOW LEGAL

DEFENSE AND EDUCATION FUND, INCORPORATED; WOMEN EMPLOYED; WOMEN'S LAW PROJECT;WOMEN'S
LEGAL DEFENSE FUND; INDEPENDENT
WOMEN'S FORUM; WOMEN'S FREEDOM NETWORK, AMICI CURIAE

UNITED STATES OF AMERICA,
INTERVENOR-APPELLANT
AND
CHRISTY BRZONKALA, PLAINTIFF

v.

ANTONIO J. MORRISON; JAMES LANDALE
CRAWFORD, DEFENDANTS-APPELLEES
AND
VIRGINIA POLYTECHNIC INSTITUTE AND
STATE UNIVERSITY; CORNELL D. BROWN;
WILLIAM E. LANDSIDLE, IN HIS CAPACITY AS
COMPTROLLER OF THE COMMONWEALTH,
DEFENDANTS
LAW PROFESSORS; VIRGINIANS ALIGNED
AGAINST SEXUAL ASSAULT; THE ANTI-DEFAMATION LEAGUE; CENTER FOR WOMEN POLICYSTUDIES; THE DC RAPE CRISIS CENTER; EQUAL RIGHTS ADVOCATES;
THE GEORGETOWN UNIVERSITY LAW CENTER SEX DISCRIMINATION CLINIC; JEWISH WOMEN
INTERNATIONAL; THE NATIONAL ALLIANCE OF
SEXUAL ASSAULT COALITIONS; THE NATIONAL
COALITION AGAINST DOMESTIC VIOLENCE;
THE NATIONAL COALITION AGAINST SEXUAL
ASSAULT; THE NATIONAL NETWORK TO END DOMESTIC VIOLENCE; NATIONAL ORGANIZATIONFOR WOMEN; NORTHWEST WOMEN'S LAW CENTER; THE

PENNSYLVANIA COALITION AGAINST DOMESTIC VIOLENCE, INCORPORATED; VIRGINIANATIONAL
ORGANIZATION FOR WOMEN; VIRGINIA NOW LEGAL DEFENSE AND EDUCATION FUND, INCORPORATED;WOMEN EMPLOYED; WOMEN'S LAW PROJECT; WOMEN'S
LEGAL DEFENSE FUND; INDEPENDENT WOMEN'S FORUM; WOMEN'S FREEDOM NETWORK,AMICI CURIAE

[Argued: March 3, 1998
Decided: March 5, 1999]

Before: WILKINSON, Chief Judge, and WIDENER, MURNAGHAN, ERVIN, WILKINS,NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

OPINION
LUTTIG, Circuit Judge:
We the People, distrustful of power, and believing that government limitedand dispersed protects freedom best, provided that our federal governmentwould be one of enumerated powers, and that all power unenumerated wouldbe reserved to the several States and to ourselves. Thus, though the authorityconferred upon the federal government be broad, it is an authority constrainedby no less a power than that of the People themselves. "[T]hat theselimits may not be mistaken, or forgotten, the constitution is written."Marbury v. Madison, 1 Cranch 137, 176, 2 L.Ed. 60 (1803). These simple truthsof power bestowed and

power withheld under the Constitution have never been more relevant thanin this day, when accretion, if not actual accession, of power to the federalgovernment seems not only unavoidable, but even expedient.
These foundational principles of our constitutional government dictate resolutionof the matter before us. For we address here a congressional statute, SubtitleC of the Violence Against Women Act, 42 U.S.C. § 13981, that federallypunishes noncommercial intrastate violence, but is defended under Congress'power "[t]o regulate commerce . . . among the several States,"U.S. Const. art. I, § 8, cl. 3, and that punishes private conduct,but is defended under Congress' power "to enforce, by appropriate legislation"the Fourteenth Amendment guarantee that "[n]o State shall . . . denyto any person within its jurisdiction the equal protection of the laws,"U.S. Const. amend. XIV, §§ 1, 5. Such a statute, we are constrainedto conclude, simply cannot be reconciled with the principles of limitedfederal government upon which this Nation is founded. As even the UnitedStates and appellant Brzonkala appear resignedly to recognize, the SupremeCourt's recent decisions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and City of Boerne v. Flores, 521 U.S.507, 117 S. Ct. 2157, 138 L.Ed.2d 624 (1997), which forcefully reaffirmedthese most basic of constitutional principles, all but preordained as much.Enacted by the Congress assertedly in exercise of its powers both to regulateinterstate commerce and to enforce the prohibitions of the Fourteenth Amendment,section 13981 was initially defended by appellants in the wake of UnitedStates v. Lopez primarily as a valid exercise, not of Congress' CommerceClause power, but of Congress' power under Section 5 to enforce the FourteenthAmendment's restrictions on the States-notwithstanding the statute's regulationof conduct purely private. Confronted by the Supreme Court's interveningdecision in City of Boerne v. Flores during this appeal, the appellantsretreated to defend the statute primarily as an exercise, not of Congress'power under Section 5 of the Fourteenth Amendment, but of its power underthe Commerce Clause-notwithstanding the statute's regulation of conductneither commercial nor interstate. And, finally, in the end, appellantsare forced by these two plainly controlling decisions to defend the statuteon little more than wistful assertions that United States v. Lopez is anaberration of no significance and that the established precedents upon whichCity of Boerne v. Flores rested-United States v. Harris, 106 U.S. 629, 1S. Ct. 601, 27 L.Ed. 290 (1883), and the Civil Rights Cases, 109 U.S. 3,3 S. Ct. 18, 27 L.Ed. 835 (1883)-should be disregarded as insufficiently"modern" to define any longer the reach of Congress' power underthe Fourteenth Amendment.
Appreciating the precariousness in which appellants find themselves by virtueof the intervening decisions in Lopez and City of Boerne, but acceptingthese recent and binding authorities as the considered judgments of a SupremeCourt that has incrementally, but jealously, enforced the structural limitson congressional power that inhere in Our Federalism, see Printz v. UnitedStates, 521 U.S. 98, 117 S. Ct. 2365, 2376-78, 138 L.Ed.2d 914 (1997); Cityof Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 2162, 2168, 2172, 138L.Ed.2d 624 (1997); Seminole Tribe v. Florida, 517 U.S. 44, 64-65, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); United States v. Lopez, 514 U.S. 549,552-53, 556-57, 567-68, 115 S. Ct. 1624, 131 L.Ed.2d 626 (1995); New Yorkv. United States, 505 U.S. 144, 155-57, 112 S. Ct. 2408, 120 L.Ed.2d 120(1992), we hold today that section 13981 exceeds Congress' power under boththe Commerce Clause of Article I, Section 8, and the Enforcement Clauseof Section 5 of the Fourteenth Amendment.
To otherwise hold would require not only that we, as the dissent would do,disclaim all responsibility to "determine whether the Congress hasexceeded limits allowable in reason for the judgment which it has exercised,"Polish Nat'l Alliance v. NLRB, 322 U.S. 643, 650, 64 S. Ct. 1196, 88 L.Ed.1509 (1944), and embrace the view of federalism articulated by Justice Blackmunover passionate denouncements by the Chief Justice and Justice O'Connorin Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105S. Ct. 1005, 83 L.Ed.2d 1016 (1985), but that we extend the reach of Section5 of the Fourteenth Amendment beyond a point ever contemplated by the SupremeCourt since that Amendment's ratification over a century and a quarter ago.These things we simply cannot do.
I.
In response to the problems of domestic violence, sexual assault, and otherforms of violent crime against women, Congress enacted the Violence AgainstWomen Act of 1994 ("VAWA"), Pub. L. No. 103-322, §§40001-40703, 108 Stat. 1796, 1902-55. This legislation represents a multifacetedfederal response to the problem of violence against women and includes ahost of provisions, only one of which we address today.
VAWA's provisions are too numerous to discuss exhaustively here. Among itsmany provisions not at issue, VAWA provides extensive federal funding- initially$1.6 billion, but subject to subsequent enhancement-to the States to helpthem curtail violence against women through law enforcement efforts, 42U.S.C. § 3796gg, education and prevention programs, id. § 300w-10,and the maintenance of battered women's shelters, id. § 10402(a); itcriminalizes interstate acts of domestic violence, 18 U.S.C. § 2261,as well as the interstate violation of protective orders against violenceand harassment, id. § 2262; it imposes various sentencing enhancementsfor existing federal crimes motivated by gender animus, 28 U.S.C. §994, restitution to the victims of violent crime against women, 18 U.S.C.§§ 2248, 2259, 2264, and other remedial provisions governing thosewho commit violent crimes against women, see, e.g., id. § 2247 (repeatoffenders); id. § 2263 (pretrial release of defendants); it amendsthe Federal Rules of Evidence by adopting a rape shield provision to excludefrom sexual assault trials evidence of a victim's prior sexual behavior,28 U.S.C. § 2074; Fed. R. Evid. 412; and it mandates that all Statesgive Full Faith and Credit to the protective orders of every other State,18 U.S.C. § 2265.
In addition to these provisions, however, VAWA establishes, in the singlesection at issue before us today, a federal substantive right in "[a]llpersons within the United States . . . to be free from crimes of violencemotivated by gender." 42 U.S.C. § 13981(b). See infra Part II.And, to enforce this substantive right, section 13981(c) creates a privatecause of action against any "person . . . who commits a crime of violencemotivated by gender," 42 U.S.C. § 13981(c), and allows any partyinjured by such a crime to obtain compensatory damages, punitive damages,and injunctive, declaratory, or other appropriate relief, id.
Plaintiff-appellant Christy Brzonkala brought the instant action under section13981 in federal district court against defendants-appellees Antonio Morrisonand James Crawford. As is relevant here, she alleged as follows.1 Brzonkalawas a student at Virginia Polytechnic Institute at the time of the incidentat issue. Morrison and Crawford were students at Virginia Polytechnic Instituteat the same time and were members of the school's football team. Brzonkalaalleges that soon after she met Morrison and Crawford, the two defendantspinned her down on a bed in her dormitory and forcibly raped her. J.A. at71-72. Afterwards, Morrison told Brzonkala, "You better not have anyf * * * ing diseases." Id. at 72. And, subsequently, Morrison announcedpublicly in the dormitory's dining hall, "I like to get girls drunkand f * * * the s * * * out of them." Id. at 73. In her complaint,Brzonkala alleges, inter alia, that these acts by Morrison and Crawfordviolated her right under 42 U.S.C. § 13981(b) to be free from gender-motivatedcrimes of violence.2
Morrison and Crawford moved to dismiss Brzonkala's claim on the groundsthat the complaint failed to state a claim under section 13981 and that,even if the complaint did state such a claim, Congress was without constitutionalauthority to enact section 13981. The United States intervened to defendthe constitutionality of section 13981 under the Commerce Clause and Section5 of the Fourteenth Amendment-the two sources of power expressly invokedby Congress in enacting section 13981. See 42 U.S.C. § 13981(a) (declaringstatute adopted "[p]ursuant to the affirmative power of Congress toenact this part under section 5 of the Fourteenth Amendment to the Constitution,as well as under section 8 of Article I of the Constitution"). Thegovernment, joined by Brzonkala, defended section 13981 as an appropriateexercise of Congress' power to regulate interstate commerce on the groundthat violence against women is a widespread social problem with ultimateeffects on the national economy. They defended section 13981 as an exerciseof Section 5 of the Fourteenth Amendment on the grounds that bias and discriminationagainst women in the state criminal justice systems often deny legal redressto the victims of gender-motivated crimes of violence and that such denialsmay violate the Equal Protection Clause.
In a thorough opinion, the district court concluded that Brzonkala stateda statutory claim against defendant Morrison, but held that Congress waswithout authority under the Constitution to enact section 13981. 935 F.Supp. 779 (W.D. Va. 1996). With respect to whether section 13981 could bejustified under Congress' power "[t]o regulate Commerce . . . amongthe several States," U.S. Const. art. I, § 8, cl. 3, the districtcourt meticulously canvassed the reasoning of Lopez, the Supreme Court'srecent decision that invalidated the Gun-Free School Zones Act of 1990 asan unconstitutional exercise of Congress' Commerce Clause power. 935 F.Supp. at 785-88. The district court concluded that section 13981, like theGun-Free School Zones Act, regulated neither the channels of interstatecommerce nor the instrumentalities of interstate commerce, and thus couldbe upheld, if at all, only as a regulation of an activity that "substantiallyaffects" interstate commerce. Id. at 786. Applying Lopez's "substantiallyaffects" test to section 13981, the district court concluded that,like the Gun-Free School Zones Act, section 13981 could not be sustainedunder the Commerce Clause both because it regulated noneconomic activity(private acts of gender-motivated violence) without any jurisdictional requirementlimiting its application only to particular acts of violence that in factaffect interstate commerce and because the practical implications of concludingthat gender- motivated violence was sufficiently related to interstate commerceto justify its regulation would be to grant Congress power to regulate virtuallythe whole of criminal and domestic relations law. Id. at 788-93. The districtcourt reasoned that these failings rendered section 13981 materially indistinguishablefrom the Gun-Free School Zones Act invalidated in Lopez, and that the asserteddifferences between section 13981 and the Gun-Free School Zones Act-thatCongress made more extensive findings with respect to section 13981, thatsection 13981 imposes only civil and not criminal liability, and that thereare arguably slightly "fewer steps of causation" in the chainfrom gender-motivated violence to an effect on interstate commerce-were,essentially, superficial distinctions in light of the Supreme Court's controllingreasoning in Lopez. Id.
Turning to Section 5, the district court then concluded that section 13981was not "appropriate legislation" "to enforce" the guaranteethat "[n]o State shall . . . deny to any person within its jurisdictionthe equal protection of the laws." U.S. Const. amend. XIV, §§1, 5. In this regard, the district court concluded, first, that section13981, which regulates private acts of gender-motivated violence, couldnot be reconciled with controlling Supreme Court precedent holding thatCongress may not regulate purely private conduct under Section 5. 935 F.Supp. at 793-94 (citing, among others, Civil Rights Cases, 109 U.S. 3, 3S. Ct. 18, 27 L.Ed. 835 (1883)). Second, the district court reasoned that,even if Congress could regulate some private conduct under Section 5 asa means of remedying violations of the Equal Protection Clause by the States,section 13981 was nonetheless invalid because it was not a closely tailoredmeans to that end:
[Section 13981] is tailored to remedy conduct other than the conduct givingrise to the equal protection concern. [Section 13981] compensates victimsfor the violence directed against them because of their gender, not forthe states' denial of equal protection. . . . The statute is overbroad:many women who do not suffer Fourteenth Amendment violations at the handsof the state system would still have a [section 13981] claim. A woman ina state with fair rape laws who is raped and whose rapist receives the maximumsentence may still have a [section 13981] claim. That woman may receivecompensation via [section 13981] despite having suffered no denial of herequal protection rights. [Section 13981] is also too narrow: many womenwho suffer clear violations of their Fourteenth Amendment rights would nothave a [section 13981] remedy, because the crime was not based on the woman'sgender. These women would not receive any compensation despite the factthat the states clearly denied them equal protection of the laws.
Id. at 800. Finally, the district court concluded that section 13981 wasnot even aimed at remedying violations of the Equal Protection Clause bythe States, primarily because it regulates the perpetrators of gender-motivatedviolence rather than the States themselves or those acting under color ofstate law. Accordingly, the district court concluded that "[n]o reasonablepossibility exists that, in enacting [section 13981], Congress has enforcedthe Fourteenth Amendment mandate that '[n]o State shall . . . deny to anyperson within its jurisdiction the equal protection of the laws,'"id. at 801 (quoting U.S. Const. amend. XIV, § 1), and that "[n]oreasonable possibility exists that [section 13981] will remedy any legitimateFourteenth Amendment concern." Id.
The government and Brzonkala appealed this decision, and, on December 23,1997, a divided panel of this court reversed the judgment of the districtcourt, holding that section 13981 was a legitimate exercise of Congress'power under the Commerce Clause. 132 F.3d 949 (4th Cir. 1997). By orderdated February 2, 1998, the full court vacated the judgment and opinionof that panel, and, on March 3, 1998, we reheard the case en banc.
II.
As a threshold matter, we must determine whether Brzonkala has stated aclaim under section 13981 sufficient to withstand appellees' motion to dismissunder Rule 12(b)(6) of the Federal Rules of Civil Procedure. We hold thatBrzonkala has properly stated a claim under section 13981 against appelleeMorrison. We do not reach, because it is unnecessary to do so, the questionof whether her complaint properly states a section 13981 claim against appelleeCrawford.
Section 13981 provides a civil remedy to parties injured by "a crimeof violence motivated by gender." 42 U.S.C. § 13981(c). The statutedefines the term "crime of violence" by reference to existingstate and federal law. Id. § 13981(d)(2) (defining the term to include"an act or series of acts that would constitute a felony" "andthat would come within the meaning of State or Federal offenses").Such a crime is defined to be "motivated by gender" for the purposesof the statute when that crime is "committed because of gender or onthe basis of gender, and due, at least in part, to an animus based on thevictim's gender." Id. § 13981(d)(1); see also id. § 13981(e)(1)(no cause of action "for random acts of violence unrelated to genderor for acts that cannot be demonstrated, by a preponderance of the evidence,to be motivated by gender").
Crawford and Morrison concede that Brzonkala's complaint alleges that theyhave committed "crime[s] of violence" within the meaning of thestatute. Cf. J.A. at 96-97 (complaint alleging that Morrison and Crawford'sconduct toward Brzonkala violated Virginia criminal law in several respects).They challenge, however, Brzonkala's allegation that they acted "becauseof gender or on the basis of gender, and due, at least in part, to an animusbased on the victim's gender." 42 U.S.C. § 13981(d)(1).
Brzonkala has explicitly alleged that the defendants-appellees' actions"were motivated wholly by discriminatory animus toward her gender andwere not random acts of violence." J.A. at 24. As it relates to Morrison,this allegation of gender motivation is supported and corroborated by Brzonkala'sallegation that Morrison stated publicly that he "like[d] to get girlsdrunk and f * * * the s * * * out of them." Id. at 20. Although theseallegations do not necessarily compel the conclusion that Morrison actedfrom animus toward women as a class, and might not even be sufficient, withoutmore, to defeat a motion either for summary judgment or for a directed verdict,we hold that they are sufficient to defeat Morrison's motion to dismiss.3
So concluding, we are faced directly, as appellants urge, with the questionwhether section 13981 represents a constitutional exercise of Congress'power under either the Commerce Clause of Article I, Section 8, or Section5 of the Fourteenth Amendment.
III.
After the Supreme Court's decision in United States v. Lopez, 514 U.S. 549,115 S. Ct. 1624, 131 L.Ed.2d 626 (1995), but before the Court's decisiontwo years ago in City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157,138 L.Ed.2d 624 (1997), the appellants defended section 13981 primarilyas a valid exercise of Congress' enforcement authority under Section 5 ofthe Fourteenth Amendment. Since the decision in City of Boerne, the appellantshave resorted to defending the section primarily as a valid exercise ofCongress' power under the Commerce Clause. Therefore, we address ourselvesfirst to this defense of the statute.
In United States v. Lopez, the Supreme Court held that Congress had exceededits power to regulate interstate commerce in enacting the Gun-Free SchoolZones Act of 1990 ("GFSZA"), 18 U.S.C. § 922(q). In so holding,the Court reaffirmed that, although the Commerce Clause represents a broadgrant of federal authority, that authority is not plenary, but subject toouter limits. See, e.g., Lopez, 514 U.S. at 556-57, 567-68, 115 S. Ct. 1624.And although the Court reaffirmed that congressional power under the CommerceClause is not limited solely to the regulation of interstate commerce perse, but extends to laws governing activities sufficiently related to interstatecommerce to render their regulation necessary and proper to the regulationof interstate commerce, the Court also substantially clarified the scopeand the limits of Congress' Article I, Section 8 power. Under the principlesarticulated by the Court in Lopez, it is evident that 42 U.S.C. § 13981,like the Gun-Free School Zones Act, does not regulate an activity sufficientlyrelated to interstate commerce to fall even within the broad power of Congressunder the Commerce Clause.
A.
In demarcating the limits of congressional power to regulate activitiesthat do not themselves constitute interstate commerce, the Court in Lopezmade clear that such power does not extend to the regulation of activitiesthat merely have some relationship with or effect upon interstate commerce,but, rather, extends only, as is relevant here, to those activities "havinga substantial relation to interstate commerce, . . . i.e., those activitiesthat substantially affect interstate commerce." Lopez, 514 U.S. at558-59, 115 S. Ct. 1624 (emphases added); accord id. at 559, 115 S. Ct.1624 ("[O]ur case law has not been clear whether an activity must 'affect'or 'substantially affect' interstate commerce in order to be within Congress'power to regulate it under the Commerce Clause. We conclude, consistentwith the great weight of our case law, that the proper test requires ananalysis of whether the regulated activity 'substantially affects' interstatecommerce." (citations omitted)).4
Furthermore, the Court made explicit that whether an activity "substantiallyaffects" interstate commerce such that it may be regulated under theCommerce Clause "is ultimately a judicial rather than a legislativequestion." Id. at 557 n. 2, 115 S. Ct. 1624 (quoting Heart of AtlantaMotel, Inc. v. United States, 379 U.S. 241, 273, 85 S. Ct. 348, 13 L.Ed.2d258 (1964) (Black, J., concurring)). Thus, the Court not only reaffirmedthat the limits of the Commerce Clause are judicially enforceable, see alsoid. at 557, 115 S. Ct. 1624 ("[T]he power to regulate commerce, thoughbroad indeed, has limits that [t]he Court has ample power to enforce."(internal quotation and citation omitted)); id. at 566, 115 S. Ct. 1624(referring to "judicially enforceable outer limits" of the CommerceClause); id. at 580, 115 S. Ct. 1624 (Kennedy, J., concurring) (discussingCourt's "duty to recognize meaningful limits on the commerce powerof Congress"), it also made clear, as its analysis confirms, that the"substantially affects" test does not contemplate a mere factualor empirical inquiry, but must be understood, in the final analysis, asa legal test, and the phrase "substantially affects interstate commerce"as one of legal art.
In clarifying the content of this legal test, the Court specifically identifiedtwo types of laws that it had upheld as regulations of activities that substantiallyaffect interstate commerce: (1) "regulations of activities that ariseout of or are connected with a commercial transaction, which viewed in theaggregate, substantially affects interstate commerce," Lopez, 514 U.S.at 561, 115 S. Ct. 1624 (majority), and (2) regulations that include a jurisdictionalelement to ensure, "through case-by-case inquiry," that each specificapplication of the regulation involves activity that in fact affects interstatecommerce, id.
The Court also emphasized that, any dictum in its previous cases notwithstanding,see infra Part III.E, it had never extended the substantially affects testto uphold the regulation of a noneconomic activity in the absence of a jurisdictionalelement, see, e.g., id. at 560, 115 S. Ct. 1624 ("Even Wickard, whichis perhaps the most far reaching example of Commerce Clause authority overintrastate activity, involved economic activity in a way that the possessionof a gun in a school zone does not."); id. at 580, 115 S. Ct. 1624(Kennedy, J., concurring) ("[U]nlike the earlier cases to come beforethe Court here neither the actors nor their conduct have a commercial character,and neither the purposes nor the design of the statute have an evident commercialnexus."). And it confirmed that it was unwilling to follow "[t]hebroad language" in certain previous cases that had "suggestedthe possibility of additional expansion" of congressional authorityunder the Commerce Clause by extending that authority beyond the scope ofits previous holdings, Lopez, 514 U.S. at 567, 115 S. Ct. 1624 (majority)("declin[ing] here to proceed any further"). Most importantly,the Court expressly held that because the Gun-Free School Zones Act "neitherregulate[d] a commercial activity nor contain[ed] a requirement that thepossession be connected in any way to interstate commerce," id., "itexceed[ed] the authority of Congress '[t]o regulate Commerce . . . amongthe several States . . .,'" id. at 551, 115 S. Ct. 1624 (quoting U.S.Const. art. I, § 8, cl. 3) (ellipses in original). Accord id. at 567-68,115 S. Ct. 1624; cf. id. at 561, 115 S. Ct. 1624 ("[GFSZA] is a criminalstatute that by its terms has nothing to do with 'commerce' or any sortof economic enterprise, however broadly one might define those terms. .. . It cannot, therefore, be sustained under our cases upholding regulationsof activities that arise out of or are connected with a commercial transaction,which viewed in the aggregate, substantially affects interstate commerce."(emphasis added)).
That the Court's focus on the failure of the Gun-Free School Zones Act eitherto regulate economic activity or to include a jurisdictional element wasintended to demarcate the outer limits-or, at the very least, the presumptiveouter limits, see infra Part III.C-of congressional power under the substantiallyaffects test is explicitly confirmed throughout the majority and concurringopinions. See, e.g., id. at 566, 115 S. Ct. 1624 ("Admittedly, a determinationwhether an intrastate activity is commercial or noncommercial may in somecases result in legal uncertainty. But, so long as Congress' authority islimited to those powers enumerated in the Constitution, and so long as thoseenumerated powers are interpreted as having judicially enforceable outerlimits, congressional legislation under the Commerce Clause always willengender 'legal uncertainty.'") (emphasis added); id. at 573-74, 115S. Ct. 1624 (Kennedy, J., concurring) (listing certain prior cases as "examplesof the exercise of federal power where commercial transactions were thesubject of regulation" and noting that "[t]hese and like authoritiesare within the fair ambit of the Court's practical conception of commercialregulation and are not called in question by our decision today").And such an understanding of the case follows inescapably, as well, fromthe enormous emphasis placed by the Court-essentially ignored by both theappellants and the dissent-on the "commercial concerns that are centralto the Commerce Clause," id. at 583, 115 S. Ct. 1624, and on the correspondingdistinction between regulation of commercial or economic activities andregulation of noncommercial, noneconomic activities, see, e.g., id. at 627-28,115 S. Ct. 1624 (Breyer, J., dissenting) (recognizing the majority's "criticaldistinction between 'commercial' and non-commercial 'transaction[s]'");id. at 608, 115 S. Ct. 1624 (Souter, J., dissenting) (similar); cf. Hoffmanv. Hunt, 126 F.3d 575, 586-87 (4th Cir. 1997) ("The [Lopez] Court repeatedlypointed to a distinction between the regulation of, on the one hand, thoseactivities that are commercial or economic in nature-or arise out of orare connected with a commercial transaction-and, on the other hand, thoseactivities that are not. In the two instances in which it stated the controllinganalysis, the Court focused on the fact that possession of a gun in a schoolzone was neither itself an economic or commercial activity nor had any connectionwith such activity.").5
Accordingly, the dissent's assertion that the rule that Congress' powerunder the Commerce Clause is at least presumptively limited to regulatingeconomic activities and promulgating regulations that include a jurisdictionalelement is an "unprecedented new rule of law," see infra at 917,is perplexing. For this is precisely the rule repeatedly articulated bythe Supreme Court in Lopez, beginning with its holding in the very firstparagraph of the opinion:
The [GFSZA] neither regulates a commercial activity nor contains a requirementthat the possession be connected in any way to interstate commerce. We holdthat the Act exceeds the authority of Congress "[t]o regulate Commerce. . . among the several states. . . ." U.S. Const., Art. I, §8, cl. 3.
Lopez, 514 U.S. at 551, 115 S. Ct. 1624 (ellipses in original); compareinfra at 917-18 (omitting second sentence and asserting that majority merely"contends" that this is the rule, while at the same time acknowledgingthat for this rule we rely upon quotation from Lopez). Far from constitutinga "new" rule of law, this rule of law is the law of the land.6
B.
In contrast to the statutes that the Supreme Court has previously upheldas permissible regulations under the substantially affects test, see Lopez,514 U.S. at 560, 115 S. Ct. 1624; id. at 580, 115 S. Ct. 1624 (Kennedy,J., concurring), but analogously to the Gun-Free School Zones Act, see id.at 551, 115 S. Ct. 1624 (majority), section 13981 neither regulates an economicactivity nor contains a jurisdictional element. Accordingly, it cannot besustained on the authority of Lopez, nor any of the Court's previous CommerceClause holdings, as a constitutional exercise of Congress' power to regulateinterstate commerce.
1.
Appellants do not contend that section 13981 regulates economic activity.Nor could they. The statute does not regulate the manufacture, transport,or sale of goods, the provision of services, or any other sort of commercialtransaction. Rather, it regulates violent crime motivated by gender animus.Not only is such conduct clearly not commercial, it is not even economicin any meaningful sense. While some violent crimes, such as robbery, maybe economically motivated and thus at least arguably "economic"in a loose sense, section 13981 is not directed toward such crimes, butinstead is expressly limited to "crime[s] of violence committed becauseof gender or on the basis of gender, and due, at least in part, to an animusbased on the victim's gender." 42 U.S.C. § 13981(d)(1); accordid. § 13981(e)(1) ("Nothing in this section entitles a personto a cause of action . . . for random acts of violence unrelated to genderor for acts that cannot be demonstrated, by a preponderance of the evidence,to be motivated by gender . . . ."); see also S. Rep. No. 103-138,at 52 n.61 (1993) (listing "absence of any other apparent motive"among circumstantial indicia of gender motivation). The statute thus explicitlyexcludes from its purview those violent crimes most likely to have an economicaspect-crimes arising solely from economic motives-and instead addressesviolent crime arising from the irrational motive of gender animus, a typeof crime relatively unlikely to have any economic character at all.
That section 13981 may, on occasion, reach activity that arises in partfrom economic motives does not transform it into a statute regulating economicactivity. For Lopez made clear that the Gun-Free School Zones Act regulatedactivity having "nothing to do with 'commerce' or any sort of economicenterprise, however broadly one might define those terms," Lopez, 514U.S. at 561, 115 S. Ct. 1624, even though a ban on guns in school zoneswould appear on its face to regulate activity considerably more likely toarise from economic motivation than is the narrowly circumscribed conductregulated by section 13981, and even though, as the Supreme Court was doubtlessaware, the defendant in Lopez itself admitted that his criminal conductwas economically motivated, see United States v. Lopez, 2 F.3d 1342, 1345(5th Cir. 1993), aff'd, 514 U.S. 549, 115 S. Ct. 1624, 131 L.Ed.2d 626 (1995)(defendant charged with violating the GFSZA by delivering a gun to a studentadmitted that he had been promised $40 for the delivery).
Not only is violent crime motivated by gender animus not itself even arguablycommercial or economic, it also lacks a meaningful connection with any particular,identifiable economic enterprise or transaction. Cf. Hoffman, 126 F.3d at587-88 (finding that the Freedom of Access to Clinic Entrances Act of 1994regulated conduct-protests-that "is closely and directly connectedwith an economic activity"-the operation of abortion clinics). Furthermore,unlike guns in school zones, violence arising from gender animus lacks evena meaningful connection with any specific activity that might arguably beconsidered economic or commercial in the loosest sense. Compare Lopez, 514U.S. at 628-30, 115 S. Ct. 1624 (Breyer, J., dissenting) (arguing that GFSZAregulated conduct closely connected with the operation of schools, an arguablycommercial activity), with Lopez, 514 U.S. at 565, 115 S. Ct. 1624 (majority)(rejecting Justice Breyer's characterization of schools as commercial).
Finally, section 13981 cannot be sustained as "an essential part ofa larger regulation of economic activity, in which the regulatory schemecould be undercut unless the intrastate activity were regulated." Id.at 561, 115 S. Ct. 1624. Although section 13981 addresses private discrimination,and other laws address discrimination in clearly economic contexts, thefederal patchwork of antidiscrimination laws can hardly be characterizedas a single, interdependent regulatory scheme aimed at commercial or economicactivity. While such an understanding of section 13981 might be suggestedby certain language in the committee reports, see, e.g., H.R. Conf. Rep.No. 103-711, at 385 (1994), reprinted in 1994 U.S.C.C.A.N. 1839, 1853 ("[C]urrentlaw provides a civil rights remedy for gender crimes committed in the workplace,but not for crimes of violence motivated by gender committed on the streetor in the home."), section 13981 and Title VII-the statute to whichthe report apparently refers-cannot reasonably be said to constitute a unifiedstatutory scheme. While the two statutes share a general concern with discrimination,they address different kinds of conduct that only occasionally overlap-gender-motivatedviolence on the one hand, employer discrimination on the other. Rather thancreating an integrated regulatory scheme, each statute is obviously writtenwithout regard for the concerns that animate the other. For example, section13981 provides a remedy for gender-motivated violence in the workplace aswell as on the street or at home, without regard for the victim's actualor potential employment status, and directly against the violent actor.Title VII, by contrast, provides a remedy only for gender discriminationthat can be attributed to the fault of the employer, without regard to whethersuch discrimination takes the form of violent conduct, and it provides thatremedy against the employer, who may or may not be the actual discriminator.
More importantly, even if the federal patchwork of antidiscrimination lawscould be characterized as a single, interdependent regulatory scheme, section13981 itself does not regulate even arguably economic activity. And it isclear from the context in which the Lopez Court observed that the Gun-FreeSchool Zones Act was not "an essential part of a larger regulationof economic activity," Lopez, 514 U.S. at 561, 115 S. Ct. 1624, thatthe Court did not intend by this statement to authorize the regulation ofactivity lacking any meaningful economic nexus pursuant to a comprehensivestatutory scheme that also regulates economic activity. Rather, it is plainthat the Court's language references its discussion of Wickard v. Filburnin the preceding paragraph, and clarifies the constitutional basis of thatdecision. See id. at 560-61, 115 S. Ct. 1624 (discussing Wickard v. Filburn,317 U.S. 111, 63 S. Ct. 82, 87 L.Ed. 122 (1942)). As the Court explained,Wickard, which it characterized as "perhaps the most far reaching exampleof Commerce Clause authority over intrastate activity," id. at 560,115 S. Ct. 1624, upheld the application to homegrown wheat of a statute"designed to regulate the volume of wheat moving in interstate andforeign commerce in order to avoid surpluses and shortages, and concomitantfluctuation in wheat prices." Id. Although the wheat at issue was notproduced for sale, and therefore its production "m[ight] not be regardedas commerce" in the strictest sense, Wickard, 317 U.S. at 125, 63 S.Ct. 82 (quoted in Lopez, 514 U.S. at 556, 115 S. Ct. 1624), it was producedfor human consumption, directly satisfying needs that would otherwise befilled by purchase or other commercial transaction, and was thus clearlyeconomic in a general sense, see Lopez, 514 U.S. at 560, 115 S. Ct. 1624("Even Wickard . . . involved economic activity in a way that the possessionof a gun in a school zone does not."). The Court's characterizationof Wickard as a case involving economic activity thus makes explicit theSupreme Court's relatively broad understanding of such activity. Id. at561, 115 S. Ct. 1624 (economic activity includes not just commercial transactionsper se, but also "activities that arise out of or are connected witha commercial transaction"); see also id. at 573-74, 115 S. Ct. 1624(Kennedy, J., concurring) (discussing Court's "practical conceptionof commercial regulation"); id. at 574, 115 S. Ct. 1624 (discussing"imprecision of content-based boundaries" and rejecting narrow"18th-century" understanding of commerce). And the Court's discussionreaffirms that when Congress enacts a general statutory framework regulatingeconomic activity, its power is not limited to the regulation only of interstateeconomic activity, but extends to the regulation of purely intrastate economicactivity as well. Cf. United States v. Robertson, 514 U.S. 669, 671, 115S. Ct. 1732, 131 L.Ed.2d 714 (1995) (per curiam) ("The 'affecting commerce'test was developed in our jurisprudence to define the extent of Congress'spower over purely intrastate commercial activities that nonetheless havesubstantial interstate effects.") (second emphasis added); Lopez, 514U.S. at 559, 115 S. Ct. 1624 ("[W]e have upheld a wide variety of intrastateeconomic activity where we have concluded that activity substantially affectedinterstate commerce." (emphases added)). But the decision does not,in such circumstances, authorize the regulation of intrastate conduct fallingoutside even the Court's relatively generous conception of economic activity.7
It follows, then, that section 13981, even more clearly than the Gun-FreeSchool Zones Act struck down in Lopez, does not fall "within the fairambit of the Court's practical conception of commercial regulation,"Lopez, 514 U.S. at 573-74, 115 S. Ct. 1624 (Kennedy, J., concurring), butis, rather, a "statute that by its terms has nothing to do with 'commerce'or any sort of economic enterprise, however broadly one might define thoseterms," Lopez, 514 U.S. at 561, 115 S. Ct. 1624 (majority). To holdotherwise would divest the words 'commerce' and 'economic' of any real meaning.Cf. id. at 565, 115 S. Ct. 1624 (rejecting definition of "commercial"activity broad enough to encompass the operation of schools as "lack[ing]any real limits because, depending on the level of generality, any activitycan be looked upon as commercial"). Accordingly, section 13981 cannotbe sustained on the authority of cases such as Wickard, which have upheld"regulations of activities that arise out of or are connected witha commercial transaction, which viewed in the aggregate, substantially affectsinterstate commerce." Id. at 561, 115 S. Ct. 1624.
2.
Similarly, and as appellants concede, section 13981 does not have an "expressjurisdictional element which might limit its reach to a discrete set of[gender-motivated violent crimes] that additionally have an explicit connectionwith or effect on interstate commerce." Id. at 562, 115 S. Ct. 1624.Although the criminal statutes enacted by Congress as part of the ViolenceAgainst Women Act predicate liability on the crossing of state lines orthe entering or leaving of Indian country, see 18 U.S.C. § 2261 (interstatedomestic violence); id. § 2262 (interstate violation of a protectiveorder), section 13981 includes no similar jurisdictional requirement, see42 U.S.C. § 13981(b)-(c) (extending cause of action to "[a]llpersons within the United States" who are victims of gender-motivatedcrime). Nor does the statute include any language which could possibly beconstrued to constitute such a jurisdictional element. Cf. United Statesv. Bass, 404 U.S. 336, 349, 92 S. Ct. 515, 30 L.Ed.2d 488 (1971) (construingstatute prohibiting felon from receiving, possessing, or transporting anyfirearm "in commerce or affecting commerce" to require additionalnexus to interstate commerce); Pennsylvania Dep't of Corrections v. Yeskey,524 U.S. 206, 118 S. Ct. 1952, 1956, 141 L.Ed.2d 215 (1998) (reasoning thatunambiguous statute cannot be construed to avoid constitutional concerns).Accordingly, section 13981 cannot be sustained as a statute that containsa jurisdictional element "which would ensure, through case-by-caseinquiry, that the [gender-motivated violent act] in question affects interstatecommerce." Lopez, 514 U.S. at 561, 115 S. Ct. 1624; cf. United Statesv. Cobb, 144 F.3d 319, 321-22 (4th Cir. 1998); United States v. Wells, 98F.3d 808, 810- 11 (4th Cir. 1996).
3.
Because section 13981 neither regulates an economic activity nor includesa jurisdictional element, it cannot be upheld on the authority of Lopezor any other Supreme Court holding demarcating the outer limits of Congress'power under the substantially affects test. See Lopez, 514 U.S. at 551,115 S. Ct. 1624 ("The Act neither regulates a commercial activity norcontains a requirement that the possession be connected in any way to interstatecommerce. We hold that the Act exceeds the authority of Congress '[t]o regulateCommerce . . . among the several states. . . .'") (quoting U.S. Const.art. I, § 8, cl. 3) (ellipses in original).
C.
Even if these two categories of permissible congressional regulations demarcatenot the absolute, but only the presumptive outer limits of congressionalpower under the substantially affects test, such that Congress may regulatenoneconomic activities absent jurisdictional elements in at least some circumstances-a proposition not only unsupported by Supreme Court holding, see Lopez,514 U.S. at 560, 115 S. Ct. 1624; id. at 580, 115 S. Ct. 1624 (Kennedy,J., concurring), but seemingly eschewed by the Court in Lopez, see, e.g.,Lopez, 514 U.S. at 551, 560, 567, 115 S. Ct. 1624-we hold that the Commercepower does not extend so far as to support the regulation at issue in thiscase. A contrary holding would violate the "first principles"of a Constitution that establishes a federal government of enumerated powers,id. at 552, 115 S. Ct. 1624, principles that the Lopez Court believed soimportant to its constitutional analysis that it both began and ended itsopinion with a full discussion of them, id. at 553-58, 564-68, 115 S. Ct.1624, and that even the government is forced to concede lie at the heartof the Court's reasoning in Lopez, see Reply Br. of Intervenor United Statesat 14 ("The [Lopez ] decision thus turned largely on the threat posedby the statute to principles of federalism."); Supp. Br. of IntervenorUnited States at 4 ("Federalism concerns were, of course, crucial inLopez.").
Consistent with these principles, Lopez affirms that we must evaluate carefullythe implications of our holdings upon our federal system of government andthat we may not find an activity sufficiently related to interstate commerceto satisfy the substantially affects test in reliance upon arguments which,if accepted, would eliminate all limits on federal power and leave us "hardpressed to posit any activity by an individual that Congress is withoutpower to regulate." Lopez, 514 U.S. at 564, 115 S. Ct. 1624; see alsoid. at 567, 115 S. Ct. 1624 (admonishing that courts are not to "pileinference upon inference in a manner that would bid fair to convert congressionalauthority under the Commerce Clause to a general police power of the sortretained by the States"). This is so especially when the regulatedactivity falls within an area of the law "where States historicallyhave been sovereign," id. at 564, 115 S. Ct. 1624, and countenanceof the asserted federal power would blur "the boundaries between thespheres of federal and state authority" and obscure "politicalresponsibility," id. at 577, 115 S. Ct. 1624 (Kennedy, J. concurring).
Lopez, therefore, is emphatic that the scope of the interstate commercepower
"must be considered in the light of our dual system of government andmay not be extended so as to embrace effects upon interstate commerce soindirect and remote that to embrace them, in view of our complex society,would effectually obliterate the distinction between what is national andwhat is local and create a completely centralized government."
Lopez, 514 U.S. at 557, 115 S. Ct. 1624 (quoting NLRB v. Jones & LaughlinSteel Corp., 301 U.S. 1, 37, 57 S. Ct. 615, 81 L.Ed. 893 (1937)); see alsoid . at 567, 115 S. Ct. 1624 (quoting A.L.A. Schechter Poultry Corp. v.United States, 295 U.S. 495, 554, 55 S. Ct. 837, 79 L.Ed. 1570 (1935) (Cardozo,J., concurring)) (noting that everything affects interstate commerce tosome degree, but rejecting "view of causation that would obliteratethe distinction between what is national and what is local in the activitiesof commerce" (internal quotation marks omitted)); id. at 567-68, 115S. Ct. 1624 (refusing to rely on arguments that obliterate "distinctionbetween what is truly national and what is truly local"); id. at 580,115 S. Ct. 1624 (Kennedy, J., concurring) ("In a sense any conductin this interdependent world of ours has an ultimate commercial origin orconsequence, but we have not yet said the commerce power may reach so far.").
We could perhaps reconcile with these "first principles" of federalisma holding that Congress may regulate, even in the absence of jurisdictionalelements, noneconomic activities that are related to interstate commercein a manner that is clear, relatively direct, and distinct from the typeof relationship that can be hypothesized to exist between every significantactivity and interstate commerce. See, e.g., United States v. Bird, 124F.3d 667, 677 n. 11 (5th Cir. 1997) ("[I]n determining whether theregulated intrastate activity substantially affects interstate commerce,'substantial' must be understood to have reference not only to a quantitativemeasure but also to qualitative ones; effects which are too indirect, remote,or attenuated- or are seen only by piling 'inference upon inference'- arenot substantial."); cf. Hoffman, 126 F.3d at 587 (holding that obstructionof abortion clinic entrances "is closely connected with, and has adirect and profound effect on, the interstate commercial market in reproductivehealth care services").
In this case, however, we can discern no such distinct nexus between violencemotivated by gender animus and interstate commerce. Indeed, to sustain section13981 as a constitutional exercise of the Commerce power, not only wouldwe have to hold that congressional power under the substantially affectstest extends to the regulation of noneconomic activities in the absenceof jurisdictional elements, but we would also have to conclude that violencemotivated by gender animus substantially affects interstate commerce byrelying on arguments that lack any principled limitations and would, ifaccepted, convert the power to regulate interstate commerce into a generalpolice power.
Echoing the government's arguments in Lopez, the appellants argue that violencemotivated by gender animus imposes medical and legal costs upon its victims;discourages those who fear such violence from traveling, working, or transactingbusiness at times or in places that they consider unsafe (thereby deterringsome interstate travel, employment, and transactions); and, as a result,inhibits the productivity of its actual or potential victims and decreasesthe supply and demand for interstate products. See Br. of Appellant Brzonkalaat 37; cf. Supp. Br. of Appellant Brzonkala at 3 (noting effects of gender-motivatedviolence "on employment, health care, housing, criminal justice, interstatetravel and consumer spending"). These arguments closely resemble, andare functionally equivalent to, the arguments advanced by the governmentin Lopez:
The Government argues that possession of a firearm in a school zone mayresult in violent crime and that violent crime can be expected to affectthe functioning of the national economy in two ways. First, the costs ofviolent crime are substantial, and, through the mechanism of insurance,those costs are spread throughout the population. Second, violent crimereduces the willingness of individuals to travel to areas within the countrythat are perceived to be unsafe. The Government also argues that the presenceof guns in schools poses a substantial threat to the educational processby threatening the learning environment. A handicapped educational process,in turn, will result in a less productive citizenry. That, in turn, wouldhave an adverse effect on the Nation's economic well-being.
Lopez, 514 U.S. at 563-64, 115 S. Ct. 1624 (citations omitted). As in Lopez,appellants rely in essence on the costs of violent crime (including thedeterrence of interstate travel and other similar interstate activities)and on decreased national productivity (including reduced employment, production,and demand), both of which ultimately affect the national economy, and presumablyinterstate commerce as well. But as the arguments are the same, so alsodoes the Supreme Court's categorical ejection in Lopez of such attenuatedlinks to interstate commerce gain control:
We pause to consider the implications of the Government's arguments. TheGovernment admits, under its "costs of crime" reasoning, thatCongress could regulate not only all violent crime, but all activities thatmight lead to violent crime, regardless of how tenuously they relate tointerstate commerce. Similarly, under the Government's "national productivity"reasoning, Congress could regulate any activity that it found was relatedto the economic productivity of individual citizens: family law (includingmarriage, divorce, and child custody), for example. Under the theories thatthe Government presents in support of [the GFSZA], it is difficult to perceiveany limitation on federal power, even in areas such as criminal law enforcementor education where States historically have been sovereign. Thus, if wewere to accept the Government's arguments, we are hard pressed to positany activity by an individual that Congress is without power to regulate.
Id. at 564, 115 S. Ct. 1624 (citation omitted); see also id. at 600, 115S. Ct. 1624 (Thomas, J., concurring) ("When asked at oral argumentif there were any limits to the Commerce Clause, the government was at aloss for words.").8
It is unsurprising that appellants must resort to such arguments. Just asit is impossible to link violence motivated by gender animus with any particular,identifiable economic transaction or enterprise, see supra Part III.B.1,it is similarly impossible to link such violence with a particular interstatemarket or with any specific obstruction of interstate commerce. Cf. Hoffman,126 F.3d at 587 (noting close and direct relationship between obstructionof abortion clinic entrances and the interstate commercial market in reproductivehealth care services); Leshuk, 65 F.3d at 1112 (noting relationship betweenthe manufacture of marijuana and the interstate market in illegal drugs).Rather, to the extent violence motivated by gender animus affects interstatecommerce, it does so only in the same way that any other significant problemdoes. Like violence in schools, violent crime generally, and many otherless visible though still significant problems, violent crime motivatedby gender animus undoubtedly imposes costs on, and decreases the productivityof, its victims. As with other such problems, to the extent violent crimemotivated by gender animus is widespread, these costs and productivity lossesin the aggregate will ultimately, though indirectly, affect the nationaleconomy. Cf., e.g., Carol Krucoff, Get Moving, Wash. Post, Aug. 12, 1997,Health Section, at 12 (quoting director of Center for Disease Control aspredicting annual savings of $4 billion in medical costs if only one-fourthof sedentary people were to exercise); 140 Cong. Rec. S14211 (1994) (statementof Sen. Hatfield) (estimating annual cost of accidents, medical problems,and reduced productivity, due to insomnia at between $92.5 and $107.5 billion).And, presumably, any adverse effect on the national economy will eventuallyalso affect interstate commerce.
However, though the Supreme Court has, in cases such as Wickard, reliedon relatively sweeping and permissive reasoning of this kind-including lookingto the aggregate effects of entire classes of activities and indulging inattenuated chains of inferences-to find that intrastate economic activitysubstantially affects interstate commerce, Lopez clearly forecloses eitherreliance upon such authority or application of such analysis to sustaincongressional regulation of noneconomic activities such as the conduct reachedby section 13981. Compare Lopez, 514 U.S. at 558, 115 S. Ct. 1624 ("[W]herea general regulatory statute bears a substantial relation to commerce, thede minimis character of individual instances arising under that statuteis of no consequence." (citation omitted; emphasis added)), with id.at 561, 115 S. Ct. 1624 (explaining that, because GFSZA was "a criminalstatute" having "nothing to do with 'commerce' or any sort ofeconomic enterprise," it could not "be sustained under [the Court's]cases upholding regulation of activities that arise out of or are connectedwith a commercial transaction, which viewed in the aggregate, substantiallyaffects interstate commerce." (emphasis added)); see also id. at 567,115 S. Ct. 1624 ("The possession of a gun in a local school zone isin no sense an economic activity that might, through repetition elsewhere,substantially affect any sort of interstate commerce." (emphases added));id. at 563, 115 S. Ct. 1624 (similar); id. at 567, 115 S. Ct. 1624 (refusingto "pile inference upon inference" to find a substantial effecton interstate commerce); id. at 565, 115 S. Ct. 1624 (rejecting, as excessivelypermissive, Justice Breyer's three-step analysis of the relationship betweengun-related crime and interstate commerce). To extend such reasoning beyondthe context of statutes regulating economic activities and uphold a statuteregulating noneconomic activity merely because that activity, in the aggregate,has an attenuated, though real, effect on the economy, and therefore presumablyon interstate commerce, would be effectively to remove all limits on federalauthority, and to render unto Congress a police power impermissible underour Constitution. See, e.g., id. at 564, 115 S. Ct. 1624.9
This case, in fact, draws into sharp relief the sweeping implications forour federal system of government that would follow were we, in relianceon such reasoning, to extend congressional power under the substantiallyaffects test to the regulation of noneconomic conduct remote from interstatecommerce. For here, not only could the logic of the arguments upon whichthe appellants must rely justify congressional regulation of any significantactivity, but the regulation in support of which these arguments are marshaledalso intrudes upon areas of the law "to which States lay claim by rightof history and expertise." Id. at 583, 115 S. Ct. 1624 (Kennedy, J.,concurring). Thus, in this case, concerns of federalism, far from hypothetical,are immediate and concrete. First, although 42 U.S.C. § 13981(c) providesa civil remedy, the underlying conduct to which the remedy attaches is violentcrime, see id. § 13981(d)(2), conduct that has traditionally been regulatedby the States through their criminal codes and laws of intentional torts.Compare id. (defining "crime of violence" through incorporationof state and federal criminal law), with Lopez, 514 U.S. at 561 n. 3, 115S. Ct. 1624 ("Under our federal system, the States possess primaryauthority for defining and enforcing the criminal law. . . . When Congresscriminalizes conduct already denounced as criminal by the States, it effectsa change in the sensitive relation between federal and state criminal jurisdiction."(citations and internal quotation marks omitted; emphasis added)). Appellantscontend that section 13981 neither duplicates state criminal laws nor overridesthese or any other state laws, but merely provides a civil remedy for conductthat is already proscribed by the States. Therefore, they argue, the provisiondoes not implicate the sensitive balance between state and federal criminalauthority.10 Even were appellants' description of section 13981 wholly accurate,we would reject their conclusion. For when the federal government providesa remedy for violent crime in addition to that provided by the States, itboth involves itself in the punishment of such crime and increases the totalpenalty for such crime beyond that provided by the laws of the States.11Moreover, this federal involvement will inescapably lead to changes in theallocation of state law enforcement and judicial resources, and even insubstantive state law, by altering the underlying enforcement realitiesagainst which all such allocative and legislative decisions are made. Thus,it is clear that the balance between federal and state responsibility forthe control of violent crime is implicated not only by federal criminalstatutes, but also by any federal sanction for such crime, even in the formof civil remedy. See Chief Justice William H. Rehnquist, Welcoming Remarks:National Conference on State-Federal Judicial Relationships, 78 Va. L. Rev.1657, 1660 (1992) (noting section 13981's "potential to create needlessfriction and duplication among the state and federal systems"); cf.Lopez, 514 U.S. at 582, 115 S. Ct. 1624 (Kennedy, J., concurring) (approvingargument that "injection of federal officials into local problems causesfriction and diminishes accountability of state and local governments"(citation omitted)).
As its proclamation of a new, substantive right "to be free from crimesof violence motivated by gender" suggests, however, section 13981 doesnot merely provide a federal remedy for certain violent conduct definedby the States as felonious. 42 U.S.C. § 13981(b). Although the statutedoes provide a remedy for such conduct, it also provides a remedy for certainfederally defined violent felonies, "whether or not those acts werecommitted in the special maritime, territorial, or prison jurisdiction ofthe United States." Id. § 13981(d)(2)(A). That is, under the plainlanguage of the statute, a plaintiff may sue for gender-motivated violentconduct that would, if it occurred within an area of special federal jurisdiction,constitute a felony under the relatively comprehensive criminal code adoptedby Congress to govern such areas, see, e.g., 18 U.S.C. §§ 1111,1118 (murder); id. § 1112 (manslaughter); id. § 1113 (attemptedmurder and manslaughter); id. § 113 (assault); id. § 114 (maiming);id. § 2241 (rape); id. § 1201 (kidnapping); id. § 81 (arson),even when the conduct occurs outside such a federal enclave, and even ifthe relevant federal law differs substantively from the law of the statein which the conduct occurs. Indeed, the apparent purpose of this provisionis to create a minimum level of substantive protection-tied to federal definitionsof violent crimes and therefore subject to ready congressional calibration-thatis unaffected by individual variation among the criminal laws of the severalStates.
Further, to the extent that section 13981's remedy is limited to violentacts constituting felonies as defined by state law, the statute providesa remedy for such conduct, "whether or not those acts have actuallyresulted in criminal charges, prosecution, or conviction," 42 U.S.C.§ 13981(d)(2)(A); id. § 13981(e)(2) (same); cf. id. § 13981(d)(2)(B)(abrogating certain defenses that may exist under state law), and in manyinstances in which such violence would not be actionable under state tortlaw, see id. § 13981(c)-(d)(2)(B) (providing cause of action in casesin which a civil remedy may not exist under state law); 28 U.S.C. §1658 (providing four-year statute of limitations which is considerably longerthan the limitations periods for intentional torts in most States); cf.42 U.S.C. § 1988(b) (successful section 13981 plaintiff may recoverattorneys' fees).
Thus, not only does section 13981 provide a federal remedy for violent crimein addition to those remedies already provided by the laws of the States-therebyincreasing the total penalty for such crime-it also provides such a remedyfor violence that the States would leave unpunished, whether for reasonsof state criminal-law policy, prosecutorial discretion, or state tort-lawpolicy. And the statute deliberately disregards the limits of state criminaland civil law, purportedly in response to the States' failure properly toenforce their criminal and tort laws against gender-motivated violent criminals.See infra Parts III.D.2, IV. By responding to this alleged failure of theStates not with a remedy against the States or their officers, as woulda civil rights statute properly enacted pursuant to Section 5 of the FourteenthAmendment, see infra Part IV.A, but instead with a remedy against the violentcriminals themselves, Congress not only has encroached upon the States'ability to determine when and how violent crime will be punished, see Lopez,514 U.S. at 581, 115 S. Ct. 1624 (Kennedy, J., concurring) (noting States'abilities "as laboratories for experimentation to devise various solutions"for problems whose "best solution is far from clear"); id. at583, 115 S. Ct. 1624 (GFSZA impermissibly "forecloses the States fromexperimenting and exercising their own judgment in an area to which Stateslay claim by right of history and experience"), but in so doing hasblurred the boundary between federal and state responsibility for the deterrenceand punishment of such crime. Accordingly, the citizens of the States willnot know which sovereign to hold accountable for any failure to addressadequately gender-motivated crimes of violence. See Lopez, 514 U.S. at 576-77,115 S. Ct. 1624 (Kennedy, J., concurring) ("If . . . the Federal andState Governments are to control each other . . . and hold each other incheck . . . citizens must have some means of knowing which of the two governmentsto hold accountable for the failure to perform a given function. Federalismserves to assign political responsibility, not to obscure it." (citationomitted)); cf. Printz v. United States, 521 U.S. 98, 117 S. Ct. 2365, 2377,138 L.Ed.2d 914 (1997) (noting that the Constitution contemplates that "aState's government will represent and remain accountable to its own citizens");New York v. United States, 505 U.S. 144, 168-69, 112 S. Ct. 2408, 120 L.Ed.2d120 (1992) ("Accountability is thus diminished when, due to federalcoercion, elected state officials cannot regulate in accordance with theviews of the local electorate in matters not pre-empted by federal regulation."(citation omitted)). Moreover, it is undisputed that a primary focus ofsection 13981 is domestic violence, a type of violence that, perhaps morethan any other, has traditionally been regulated not by Congress, but bythe several States. See, e.g., infra at 849-50 (discussing congressionalfindings on the extent and effects of domestic violence). Though such violenceis not itself an object of family law-an area of law that clearly restsat the heart of the traditional authority of the States, see Lopez, 514U.S. at 564, 115 S. Ct. 1624- issues of domestic violence frequently arisefrom the same facts that give rise to issues such as divorce and child custody,which lie at the very core of family law. Although section 13981 explicitlyprecludes the federal courts from exercising the supplemental jurisdictionthat might otherwise extend to such matters, see 42 U.S.C. § 13981(e)(4),the fact that Congress found it necessary to include such a jurisdictionaldisclaimer confirms both the close factual proximity of the conduct regulatedby section 13981 to the traditional objects of family law, cf. United MineWorkers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 16 L.Ed.2d 218 (1966)(holding that supplemental jurisdiction extends to state law claims arisingfrom the same "common nucleus of operative fact" as federal claims);28 U.S.C. § 1367 (codifying this aspect of Gibbs ), and the extentof section 13981's arrogation to the federal judiciary of jurisdiction overcontroversies that have always been resolved by the courts of the severalStates. In the words of the Chief Justice of the United States, section13981 creates a "new private right of action so sweeping, that thelegislation could involve the federal courts in a whole host of domesticrelations disputes." Chi. Daily L. Bull., Jan. 2, 1992, at 2 (quotingfrom Chief Justice Rehnquist's 1991 report on the federal judiciary).12
Section 13981 also sharply curtails the States' responsibility for regulatingthe relationships between family members by abrogating interspousal andintrafamily tort immunity, the marital rape exemption, and other defensesthat may exist under state law by virtue of the relationship that existsbetween the violent actor and victim. See § 13981(d)(2)(B); cf. Br.of Intervenor United States at 12 (noting that, "as of 1990, sevenstates still did not include marital rape as a prosecutable offense, andan additional 26 states allowed prosecutions only under restricted circumstances").Although Congress may well be correct in its judgment that such defensesrepresent regrettable public policy, the fact remains that these policychoices have traditionally been made not by Congress, but by the States.By entering into this most traditional area of state concern, Congress hasnot only substantially reduced the States' ability to calibrate the extentof judicial supervision of intrafamily violence, see Lopez, 514 U.S. at581, 115 S. Ct. 1624 (Kennedy, J., concurring), but has also substantiallyobscured the boundaries of political responsibility, freeing those Statesthat would deny a remedy in such circumstances from accountability for thepolicy choices they have made, see id. at 576-77, 115 S. Ct. 1624.
The sweeping intrusion of section 13981 into these areas of traditionalstate concern well illustrates the essentially limitless nature of congressionalpower that would follow if we were to accept, as sufficient to justify federalregulation under the Commerce Clause, the type of connection with interstatecommerce on which appellants rely in this case. Under such an understanding,the only conceivable limit on congressional power to regulate an activitywould be the significance of that activity, because any significant activityor serious problem will have an ultimate, though indirect, effect upon theeconomy, and therefore, at least presumptively, upon interstate commerceas well. While we do not question the significance of the problems posedby violence arising from gender animus, Lopez confirms that such significance,standing alone, simply does not provide a meaningful limitation on federalpower, and that a problem does not become a constitutionally permissibleobject of congressional regulation under the Commerce Clause merely becauseit is serious. See Lopez, 514 U.S. at 565, 115 S. Ct. 1624 (rejecting JusticeBreyer's argument that because "gun-related violence is a serious problem"with an ultimate effect on "trade and commerce," it may be regulatedunder the Commerce Clause). To hold otherwise would require us to adopta purely quantitative view of the substantially affects test that would,in light of the relative institutional competencies of the legislature andthe judiciary, be difficult to square either with the Lopez Court's clarificationof this test as "ultimately a judicial rather than a legislative question,"id. at 557 n.2, 115 S. Ct. 1624 (citation omitted), or with the "independentevaluation of constitutionality under the Commerce Clause" that Lopezrequires of the courts, id. at 562, 115 S. Ct. 1624; see also Bird, 124F.3d at 677 n. 11 (noting qualitative aspects of substantially affects testunder Lopez ). As this case illustrates, to adopt such an understandingof Congress' power to regulate interstate commerce would be to extend federalcontrol to a vast range of problems falling within even the most traditionalareas of state concern-problems such as violent crime generally, educationalshortcomings, and even divorce, all of which are significant and as a resultunquestionably affect the economy and ultimately interstate commerce. Cf.Lopez, 514 U.S. at 561 n. 3, 115 S. Ct. 1624 ("Under our federal system,the States possess primary authority for defining and enforcing the criminallaw.") (citation omitted); Northern Sec. Co. v. United States, 193U.S. 197, 402, 24 S. Ct. 436, 48 L.Ed. 679 (1904) (Holmes, J., dissenting)("Commerce depends upon population, but Congress could not, on thatground, undertake to regulate marriage and divorce."). Such a sweepinginterpretation of the Congress' power would arrogate to the federal governmentcontrol of every area of activity that matters, reserving to the Statesauthority over only the trivial and the insignificant.
After Lopez, it is simply insufficient to contend, as does the dissent,that principles of federalism are implicated only if a federal law "directlysupersede[s] official state action in an area of traditional state concern."See infra at 930; see also id. at 928 (asserting that "Lopez standsfor the proposition that Commerce Clause legislation may be unconstitutionalif it directly supersedes official state action in an area of traditionalstate concern"); id. at 930 ("When a federal statute directlysupersedes official state action in an area of traditional state concern,then (and only then) may a court properly consider whether the rationalesupporting the statute contains an inherent limiting principle.").Plainly put, neither the language nor the logic of Lopez permits, much lesssupports, such a parsimonious view of the rights of the States in our federalsystem. If anything, the Court in Lopez, as it has been over the past tenyears or so, was at pains to express quite the opposite view, especiallywhere, as here, the reasoning advanced in support of a given federal intrusionupon the prerogatives of the States would, if summoned, support a powerin the Congress that is, for all intents and purposes, without limit. See,e.g., Lopez, 514 U.S. at 564, 115 S. Ct. 1624 ("Under the theoriesthat the Government presents . . . it is difficult to perceive any limitationon federal power, even in areas where States historically have been sovereign.");id. at 567, 115 S. Ct. 1624 (rejecting reasoning "that would bid fairto convert congressional authority under the Commerce Clause to a generalpolice power of the sort retained by the States"); id. at 580, 115S. Ct. 1624 (Kennedy, J., concurring) ("[W]e must inquire whether theexercise of national power seeks to intrude upon an area of traditionalstate concern."); id. at 583, 115 S. Ct. 1624 (noting "tendencyof this statute to displace state regulation in areas of traditional stateconcern" and explaining that "[w]hile the intrusion on state sovereigntymay not be as severe in this instance as in some of our recent Tenth Amendmentcases, the intrusion is nonetheless significant" and "contradictsthe federal balance").
In short, to hold that an attenuated and indirect relationship with interstatecommerce of the sort asserted here is sufficient to bring within Congress'power to regulate such commerce the punishment of gender-motivated violentcrime, an activity that has nothing to do with commerce and that has traditionallybeen regulated by the States, we would have to do what the Supreme Courthas never done, and what the Lopez Court admonished us not to do: "pileinference upon inference in a manner that would bid fair to convert congressionalauthority under the Commerce Clause to a general police power of the sortretained by the States" and "conclude that the Constitution'senumeration of powers does not presuppose something not enumerated, andthat there never will be a distinction between what is truly national andwhat is truly local." Id. at 567-68, 115 S. Ct. 1624 (citations omitted).Like the Supreme Court, "[t]his we are unwilling to do." Id. at568, 115 S. Ct. 1624.
D.
To the extent that appellants even acknowledge the precedential force ofLopez, see infra Part III.E, they attempt to distinguish that decision primarilyin two ways. First, they argue that here, unlike in Lopez, the relationshipbetween the regulated activity and interstate commerce upon which they relyis not just identified by them alone, but is also documented by congressionalfindings to which we are obliged to defer. Second, they contend that section13981 regulates conduct implicating civil rights, that civil rights is anarea of manifest federal concern, and that therefore the regulation of theconduct here, despite its noneconomic character and its lack of a closeconnection to interstate commerce, does not offend the first principlesof federalism. Appellants argue that these distinctions are sufficient groundsfor upholding the constitutionality of section 13981 under the CommerceClause. We disagree.
1.
It is true that section 13981, unlike the Gun-Free School Zones Act as originallyenacted, is accompanied by congressional findings regarding the extent andeffects of the problem it addresses. However, though Congress' legislativeexpertise is entitled to deference, Lopez is unmistakable that our deferenceis not, and cannot be, absolute. And the principles articulated in thatdecision leave little doubt that the findings here are simply inadequateto sustain section 13981 as a constitutional exercise of Congress' powerunder Article I, Section 8.
(a)
The Lopez Court acknowledged that "legislative findings, and indeedeven congressional committee findings," may assist the courts in determiningconstitutionality under the Commerce Clause. Lopez, 514 U.S. at 562, 115S. Ct. 1624; see also id. at 563, 115 S. Ct. 1624 (noting the lack of findingsthat "would enable [the Court] to evaluate the legislative judgmentthat the activity in question substantially affected interstate commerce,even though no such substantial effect was visible to the naked eye").The Court emphasized, however, that "[s]imply because Congress mayconclude that a particular activity substantially affects interstate commercedoes not necessarily make it so." Id. at 557 n. 2, 115 S. Ct. 1624(citation omitted). Rather, because the question of whether particular activities"affect interstate commerce sufficiently to come under the constitutionalpower of Congress to regulate them is ultimately a judicial rather thana legislative question," id., we cannot sustain a statute solely onthe strength of a congressional finding as to the factual relationship betweena particular activity and interstate commerce. Instead, we must undertakean "independent evaluation" to determine whether, as a legal matter,the substantially affects test is satisfied. Id. at 562, 115 S. Ct. 1624(noting that congressional findings may be considered "as part of ourindependent evaluation of constitutionality under the Commerce Clause"(emphases added)); cf. id. at 563, 115 S. Ct. 1624 (stating that congressionalfindings "enable us to evaluate the legislative judgment that the activityin question substantially affected interstate commerce" (emphasis added));id. at 559, 115 S. Ct. 1624 ("[W]e have upheld a variety of congressionalActs regulating intrastate economic activity where we have concluded thatthe activity substantially affected interstate commerce." (emphasisadded)).
Appellants concede, as they must, that, under Lopez, findings are not "conclusive,"Reply Br. of Intervenor United States at 12, "that a court is not boundby congressional findings," Supp. Br. of Intervenor United States at4, that "[C]ongress cannot, by fiat, establish a substantial effecton interstate commerce where none exists," id., and that "a courtmust conduct an independent investigation," id.; cf. Br. of AppellantBrzonkala at 35 n. 29 (acknowledging "[t]he Lopez decision's recognitionthat a law's constitutionality ultimately is a judicial decision").
Despite such lip service to the Court's explicit pronouncements in Lopezthat congressional findings are not conclusive of the constitutional inquiry,however, appellants contend that the Gun-Free School Zones Act's primaryand dispositive flaw was that Congress did not document the connection betweenthe conduct regulated by that Act and interstate commerce. In support ofthis contention, appellants cite the Lopez Court's cursory mention of thelack of congressional findings that might have "enable[d] [it] to evaluatethe legislative judgment that the activity in question substantially affectedinterstate commerce, even though no such substantial effect was visibleto the naked eye," Lopez, 514 U.S. at 563, 115 S. Ct. 1624. They thenconstrue that Court's refusal, four pages later, to sustain the government'scontentions in that case by "pil[ing] inference on inference,"id. at 567, 115 S. Ct. 1624, as referring to the lack of congressional documentationof the regulated activity's affect on interstate commerce.13 According toappellants, had Congress provided such documentation, the Court could havesustained the statute without resorting to inference, and would in facthave done so.14
Lopez, however, cannot reasonably be understood to have turned on a merelack of documentation of the effects of the regulated conduct on interstatecommerce. Although the Supreme Court noted that findings could aid it inidentifying an effect on interstate commerce that was not "visibleto the naked eye," Lopez, 514 U.S. at 563, 115 S. Ct. 1624, the Courtnever indicated that it did not understand the relationship alleged to existbetween guns in school zones and interstate commerce. While the Court didnot consult legislative materials to illuminate the contours of this relationship,both the government and the principal dissent detailed how such guns affectedinterstate commerce. See, e.g., id. at 618-25, 115 S. Ct. 1624 (Breyer,J., dissenting). The Court's lucid recitation of the arguments of both thegovernment, see Lopez, 514 U.S. at 563-64, 115 S. Ct. 1624 (majority) (recitinggovernment's arguments), and the principal dissent, id. at 564-66, 115 S.Ct. 1624 (reciting Justice Breyer's arguments), leaves no doubt that itunderstood the nature of the relationship asserted. Further, the Court nowherequestioned the factual validity of the arguments made by either the governmentor Justice Breyer. See id. at 563-66, 115 S. Ct. 1624; see also id. ("AlthoughJustice Breyer argues that acceptance of the Government's rationale wouldnot authorize a general police power, he is unable to identify any activitythat the States may regulate but Congress may not."); id. at 600, 115S. Ct. 1624 (Thomas, J., concurring) (same).
Had the Court's decision turned on either lack of understanding or skepticismof the factual link between guns in school zones and interstate commerce,the Court's failure to consult the massive documentation available regardingthose effects would have been inexplicable. Not only did the Court haveavailable before it a wealth of legislative, governmental, and other materialsdocumenting these links, see, e.g., id. at 631-34, 115 S. Ct. 1624 (Breyer,J., dissenting) (appendix listing numerous hearings, transcripts, committeereports, and other legislative materials bearing directly on these links);id. at 634-36, 115 S. Ct. 1624 (listing other governmental materials); id.at 636-44, 115 S. Ct. 1624 (listing other readily available materials),it also had before it explicit congressional findings that (1) crime wasa nationwide problem exacerbated by the interstate movement of drugs, guns,and criminal gangs; (2) firearms and their component parts move easily ininterstate commerce, and guns have been found in increasing numbers aroundschools; (3) citizens fear to travel through certain parts of the countrydue to concern about violent crime and gun violence; (4) the occurrenceof violent crime in school zones has resulted in a decline in the qualityof education, which in turn has had an adverse impact on interstate commerce;and (5) the States are unable to curb gun-related crime on their own. SeeViolent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322,§ 320904, 108 Stat. 1796, 2125. To be sure, these findings had beenadded to the statute after its adoption, and the government did not relyon them "in the strict sense of the word." Lopez, 514 U.S. at563 n.4, 115 S. Ct. 1624 (citation omitted). But had the Court desired onlylegislative corroboration of the government's arguments, it could easilyhave consulted these findings, and presumably would have done so. As thegovernment explained, "at a very minimum [the findings] indicate thatreasons can be identified why Congress wanted to regulate this particularactivity." Id. (citation omitted).
The Court's indifference both to these findings and to the massive documentationassembled by the principal dissent confirms that the Court did not rejectas insufficient the relationship between guns in school zones and interstatecommerce asserted by the government and the dissents because it deemed thatrelationship opaque or dubious, but rather that it did so for the reasonthat it explicitly stated: accepting such indirect and attenuated relationshipsas sufficient to justify congressional regulation would render unto Congressa power so sweeping as to leave the Court "hard pressed to posit anyactivity by any individual that Congress is without power to regulate."Lopez, 514 U.S. at 564, 115 S. Ct. 1624.
It is clear, therefore, that appellants fundamentally misunderstand theLopez Court's refusal "to pile inference upon inference" to sustainthe Gun-Free School Zones Act. Id. at 567, 115 S. Ct. 1624. When quotedin full rather than as an isolated fragment-as appellants would have it-theCourt's statement is of unmistakable import:
To uphold the Government's contentions here, we would have to pile inferenceupon inference in a manner that would bid fair to convert congressionalauthority under the Commerce Clause to a general police power of the sortretained by the States. Admittedly, some of our prior cases have taken longsteps down that road, giving great deference to congressional action. Thebroad language in these opinions has suggested the possibility of additionalexpansion, but we decline here to proceed any further. To do so would requireus to conclude that the Constitution's enumeration of powers does not presupposeanything not enumerated, and that there never will be a distinction betweenwhat is truly national and what is truly local. This we are unwilling todo.
Id. at 567-68, 115 S. Ct. 1624 (citations omitted). Rather than referringto the Court's passing mention of the original statute's lack of findingsfour pages earlier, this statement instead represents a powerful summaryof an intervening three-and-a-half-page discussion emphatically reaffirmingthe existence of meaningful substantive limits on congressional authorityunder the Commerce Clause.
The indisputable abundance of the materials available to the Court in Lopezdetailing the real, though indirect, effect of guns in school zones on interstatecommerce strongly suggests that appellants' argument really is not thatLopez turned on a simple lack of documentation, but rather that it turnedon a lack of legislative formalities. Thus, despite their concessions, seesupra at 845, it is evident that appellants regard legislative formalitiessuch as findings as dispositive- at least as a practical matter-of whetheran activity may be regulated under the substantially affects test. In fairnessto them, however, they are far more abashed in their reliance upon congressionalfindings than are our dissenting colleagues, who are quite candid abouttheir prostrate deference to congressional pronouncements. The dissentersbegin and end their Commerce Clause analysis by posing the dispositive questionas "whether . . . Congress exceeded its constitutional authority inenacting" section 13981. In the immediately following two sentences,they then provide what, from their following discussion, we know is forthem the answer-namely, that Congress did not exceed its authority, because"Congress directly addressed this very question" and on the basisof findings and evidence concluded that, in fact, it did act constitutionallyin enacting section 13981. See infra at 911.15 And only as an after thought(literally)-and, for it, an empty one at that, see id. at 859-61 does thedissent even acknowledge that the courts must ensure compliance with theConstitution. Id. at 911-12, 921. So far from Lopez, appellants would noteven dare to venture.
Appellants' position (and a fortiori the dissent's), however, flatly contradictsthe Supreme Court's opinion in Lopez. While an understanding of legislativeformalities as dispositive in practice if not theory would follow from thereasoning initially employed by the Fifth Circuit in striking down the Gun-FreeSchool Zones Act, see Lopez, 2 F.3d at 1363 ("Practically speaking,[congressional] findings almost always end the matter."); id. at 1365-66(holding that Congress "ha[d] not taken the steps necessary to demonstratethat such an exercise of power is within the scope of the Commerce Clause");Lopez, 514 U.S. at 552, 115 S. Ct. 1624 (noting that Fifth Circuit heldthe Act invalid "in light of what it characterized as insufficientcongressional findings and legislative history"), such an understandingcannot be reconciled with the much different analysis of the statute's constitutionalityundertaken by the Supreme Court. See, e.g., id. at 551, 115 S. Ct. 1624("The Act neither regulates a commercial activity nor contains a requirementthat the possession be connected in any way to interstate commerce. We holdthat the Act exceeds the authority of Congress to regulate Commerce . .. among the several States. . . ." (internal quotation marks omitted)).
To read the Supreme Court's decision as if it were the Fifth Circuit's,one would have to dismiss as disingenuous the Supreme Court's explicit statementsthat "[s]imply because Congress may conclude that a particular activitysubstantially affects interstate commerce does not necessarily make it so,"id. at 557 n. 2, 115 S. Ct. 1624 (internal quotation marks and citationomitted); that "[w]hether particular operations affect interstate commercesufficiently to come under the constitutional power of Congress to regulatethem is ultimately a judicial rather than a legislative question,"id.; and even that "Congress normally is not required to make formalfindings as to the substantial burdens that an activity has on interstatecommerce," id. at 562, 115 S. Ct. 1624. Further, the Court's self-described"independent evaluation of constitutionality under the Commerce Clause,"id., together with its purported consideration of the government's argumentsregarding the relationship between guns in school zones and interstate commerce,id. at 563-68, 115 S. Ct. 1624, would likewise have to be disregarded asmere contrivance. And, most importantly, the Supreme Court's definitiveinvocation of the first principles of federalism as limitations on congressionalpower would have to be consigned to platitude, for legislative formalitiesare at most a mere procedural limit on congressional power. Cf. SeminoleTribe v. Florida, 517 U.S. 44, 64, 116 S. Ct. 1114, 134 L.Ed.2d 252 (1996)("If Hans means only that federal-question suits for money damagesagainst the States cannot be brought in federal court unless Cogress clearlysays so, it means nothing at all.") (quoting Pennsylvania v. UnionGas Co., 491 U.S. 1, 36, 109 S. Ct. 2273, 105 L.Ed.2d 1 (1989) (Scalia,J., concurring in part and dissenting in part)). In short, to read Lopezas elevating legislative formality to a position dispositive of the constitutionalinquiry, even as a practical matter, one would have to ignore everythingthe Court said in that opinion, other than its single, passing allusionto the statute's lack of findings.
Had the Court in Lopez intended so to elevate the existence or non-existenceof findings or a formal legislative record, its holding that the Gun-FreeSchool Zones Act exceeded Congress' power under the Commerce Clause wouldhave constituted not a substantive limitation on congressional power, butrather a mere procedural hurdle-in essence, a remand to Congress to makeformal findings or compile a formal record. Not only would a judicial mandatethat Congress construct a proper paper trail of the sort that might be demandedof an administrative agency ill befit the dignity of the Legislature, see,e.g., Turner Broad. Sys. v. FCC, 512 U.S. 622, 666, 114 S. Ct. 2445, 129L.Ed.2d 497 (1994) (opinion of Kennedy, J.) ("Congress is not obligated,when enacting its statutes, to make a record of the type that an administrativeagency or court does to accommodate judicial review."); City of Boerne,117 S. Ct. at 2170 ("Judicial deference, in most cases, is based noton the state of the legislative record Congress compiles but on due regardfor the decision of the body constitutionally appointed to decide. As ageneral matter, it is for Congress to determine the method by which it willreach a decision." (internal quotation marks and citation omitted));cf. Maryland v. Wirtz, 392 U.S. 183, 190 n. 13, 88 S. Ct. 2017, 20 L.Ed.2d1020 (1968) ("We are not concerned with the manner in which Congressreached its factual conclusions."), but had the Supreme Court intendedto impose such a procedural requirement, Lopez would have been an unusualcase in which to announce it. For after the Fifth Circuit's decision, butbefore the Supreme Court's, Congress had already amended the Gun-Free SchoolZones Act to include "congressional findings regarding the effectsof firearm possession in and around schools upon interstate and foreigncommerce." Lopez, 514 U.S. at 563 n. 4, 115 S. Ct. 1624. The SupremeCourt's holding that the Gun-Free School Zones Act was unconstitutional,accordingly, would have constituted little more than historical irrelevancy.Surely we cannot conclude that the Lopez Court intended to authorize theenforcement of the Gun-Free School Zones Act against those who, unlike thedefendant in Lopez, violated the statute after it was amended in 1994 toinclude explicit congressional findings. Not only did the Court never evenhint that the addition of findings solved, even prospectively, the problemsit identified with the statute, but such an inference would also be difficultto reconcile with the Court's manifest lack of interest in the subsequentlyadopted findings. See id. at 563 n. 4, 115 S. Ct. 1624 (mentioning thesefindings only briefly in a footnote). Finally, if there were any doubt,despite the government's litigation position in this proceeding, neitherCongress nor the government has so interpreted Lopez, as evidenced by thefact that, in response to that decision, Congress, at the Administration'surging, amended 18 U.S.C. § 922(q) by adding a jurisdictional element.Compare 18 U.S.C. § 922(q)(2)(A) (limiting statute's reach to prohibitionof possession, in a school zone, of a firearm "that has moved in orthat otherwise affects interstate or foreign commerce"), with 31 WeeklyComp. Pres. Doc. 809 (May 15, 1995) (presenting Attorney General Reno's"analysis of Lopez" and recommended "legislative solution"of limiting statute's reach by adding jurisdictional element, "therebybring[ing] it within the Congress' Commerce Clause authority").
Lopez, then, cannot reasonably be understood to contemplate absolute deferenceto legislative findings, either in theory or in practice. As the opinioninstructs, such findings can clarify the factual relationship that existsbetween conduct that a statute seeks to regulate and interstate commerce.However, because constitutionality under the substantially affects testturns ultimately not on mere empirical fact but on law, unless the relationshipso clarified is sufficient to satisfy the legal requirements of that test,the statute cannot be sustained.
(b)
When viewed not with absolute deference, but rather "as part of ourindependent evaluation of constitutionality under the Commerce Clause,"Lopez, 514 U.S. at 562, 115 S. Ct. 1624, it is apparent that the congressionalfindings on which appellants rely cannot establish that section 13981 isa permissible regulation under the substantially affects test.
In the first place, although the appellants cite hearings and committeereports from at least three different Congresses-raising the reasonablequestion of which Congress found what, a question we would be forced topursue if we believed findings constituted a formal procedural requirement-manyof the congressional findings on which the appellants rely describe onlyindirectly the relationship between gender-motivated violent crime and interstatecommerce. Although the committee reports recite numerous findings that violenceagainst women generally, and domestic violence in particular, are significantproblems, see, e.g., S. Rep. No. 103-138, at 38 (1993) (rape and murderstatistics); id. at 41-42 (family violence); H.R. Rep. No. 103-395, at 26(1993) (domestic violence statistics); S. Rep. No. 101-545, at 37 (1990)(same); H.R. Rep. No. 103-395, at 25 (violent crime generally), and eventhat domestic violence and other violence against women affects the economy,see, e.g., S. Rep. No. 103-138, at 41 (estimating "health care, criminaljustice and other social costs of domestic violence" at $5 to $10 billionannually); S. Rep. No. 101-545, at 33 ("Partial estimates show thatviolent crime against women costs this country at least 3 billion . . .dollars a year."), neither of these propositions clarifies the impactof gender-motivated violence against women-as opposed to all violence againstwomen-on the economy. Cf., e.g., 42 U.S.C. § 13981(e)(1) (excludingfrom statute's purview "random acts of violence unrelated to gender"and "acts that cannot be demonstrated, by a preponderance of the evidence,to be motivated by gender"); S. Rep. No. 102-197, at 69 (1991) (statementof Sen. Biden) ("Title III [section 13981] does not cover everydaydomestic violence cases. . . . This is stated clearly in the committee reportand it is the only fair reading of the statutory language."). The findingslinking this more narrow class of violence to the economy are substantiallymore modest. See, e.g., S. Rep. No. 103-138, at 54 ("Gender-based violencebars its most likely targets-women-from full partic[ipation] in the nationaleconomy."); id. ("Even the fear of gender-based violence affectsthe economy. . . ."). Not even these findings, however, describe theeffects of gender-motivated violence on interstate commerce, let alone dothey constitute a legislative judgment that gender-motivated violence substantiallyaffects interstate commerce.
Ultimately, appellants cite only two congressional findings regarding theeffects of gender-motivated violence on interstate commerce. First, theycite a House Conference Report finding, in a single conclusory sentence,that "crimes of violence motivated by gender have a substantial adverseeffect on interstate commerce, by deterring potential victims from travelinginterstate, from engaging in employment in interstate business, and fromtransacting with business, and in places involved, in interstate commerce;crimes of violence motivated by gender have a substantial adverse effecton interstate commerce, by diminishing national productivity, increasingmedical and other costs, and decreasing the supply of and the demand forinterstate products." H.R. Conf. Rep. No. 103-711, at 385 (1994), reprintedin 1994 U.S. Code Cong. & Admin. News 1839, 1853. Second, they citea Senate report finding that "[g]ender-based violent crimes meet themodest threshold required by the Commerce Clause. Gender-based crimes andthe fear of gender-based crimes restricts movement, reduces employment opportunities,increases health expenditures, and reduces consumer spending, all of whichaffect interstate commerce and the national economy." S. Rep. No. 103-138,at 54 (emphases added).16
Although these two lone findings do recite effects of gender-motivated violenceon interstate commerce as a factual matter, to the extent these findingsare intended also as a legal conclusion that such violence is sufficientlyrelated to interstate commerce to satisfy the substantially affects test,under Lopez we cannot accept this conclusion uncritically. This is especiallyso where, as here, Congress' findings themselves reveal a profound misunderstandingof the constitutionally permissible scope of its Commerce power under ArticleI, Section 8. The Senate initially found not that gender-motivated violencesubstantially affects interstate commerce, but only that gender-based violenceaffects interstate commerce and the national economy sufficiently to satisfywhat it described as the "modest threshold required by the CommerceClause." And even this finding must be considered in light of its simultaneouslyand explicitly stated belief that "[t]he Commerce Clause is a broadgrant of power allowing Congress to reach conduct that has even the slightesteffect on interstate commerce." S. Rep. No. 138, at 54 (emphasis added);cf. Lopez, 514 U.S. at 559, 115 S. Ct. 1624 ("We conclude, consistentwith the great weight of our case law, that the proper test requires ananalysis of whether the regulated activity 'substantially affects'
interstate commerce." (emphasis added)). That this misapprehensionof the scope of the power to regulate interstate commerce was not confinedto the Senate is confirmed by section 13981's express statutory purpose"to protect the civil rights of victims of gender motivated violenceand to promote public safety, health, and activities affecting interstatecommerce." 42 U.S.C. § 13981(a) (emphasis added). Not only doesthe explicit language of this provision misstate the scope of Congress'power under the Commerce Clause, but it also assumes a general power toregulate health and safety-the very essence of the sort of police powerthe Constitution denies to the federal government and reserves to the States.Compare U.S. Const. art. I, § 8 (enumerated powers of Congress), withid. amend. X ("The powers not delegated to the United States by theConstitution, nor prohibited by it to the States, are reserved to the Statesrespectively, or to the people."), and City of Boerne, 117 S. Ct. at2171 (noting "the States' traditional prerogatives and general authorityto regulate for the health and welfare of their citizens").

Therefore, as a court, we cannot avoid our duty to evaluate independentlythe constitutionality of section 13981 under the Commerce Clause.

The legislative record in this case, considered as a whole, shows that violenceagainst women is a sobering problem and also that such violence ultimatelydoes take a toll on the national economy. The record also supports an inferencethat some portion of this violence, and the toll that it exacts, is attributableto gender animus. And Congress' specific findings regarding the relationshipbetween gender-motivated violence and interstate commerce, though somewhatconclusory, cf. Lopez, 514 U.S. at 612 n. 2, 115 S. Ct. 1624 (Souter, J.,dissenting) (noting that the findings added by Congress to the GFSZA weremade "at such a conclusory level of generality as to add virtuallynothing to the record"), depict the manner in which such violence affectsinterstate commerce-primarily by imposing medical, legal, and other costsupon its victims; by discouraging those who fear such violence from traveling,working, or transacting business at times or in places that they deem unsafe(thereby deterring some interstate travel, employment, and transactions);and, as a result, by inhibiting the productivity of its actual or potentialvictims and decreasing the supply and demand for interstate products.

This legislative record no doubt supports the wisdom and legitimacy of manyof the measures Congress enacted in the Violence Against Women Act, suchas the expenditure of federal funds, the criminalization of violence againstwomen with an explicit interstate nexus, and the amendment of the FederalRules of Evidence to better accommodate the victims of such violence. And,given the sweeping view of Congress' power to regulate interstate commercesuggested by the committee reports and the express statutory-purpose provision,it is not surprising that Congress believed the relationship between gender-motivatedcrimes of violence and interstate commerce sufficient to support, underthe Commerce Clause, the regulation of this noneconomic activity, even inthe absence of a jurisdictional element.

However, although appellants repeatedly assert that the relationship describedby these findings is direct, see, e.g., Br. of Intervenor United Statesat 19, 28, 30-31; Reply Br. of Intervenor United States at 10, 12-13, itquite simply is not. Rather, it is almost precisely analogous to the attenuated,though undoubtedly real, relationship asserted to exist between guns inschool zones and interstate commerce, see Lopez, 514 U.S. at 563-64, 115S. Ct. 1624 (rejecting arguments of costs of crime, decreased travel, anddecreased national productivity as insufficient to bring the regulationof guns in school zones within the Commerce power), or, for that matter,to that which undoubtedly exists between any significant activity and interstatecommerce. That the relationship here is asserted not by appellants alone,but also by Congress, cannot be dispositive. As noted, the Supreme Courtdid not reject the government's arguments in Lopez because they lacked formality.Nor did it reject them because it did not understand them or because itquestioned their factual validity. Rather, the Supreme Court held that theCommerce power could not be extended to the regulation of activities havingonly such an attenuated relationship with interstate commerce without grantingCongress an unlimited police power inconsistent with a Constitution of enumeratedand limited federal powers. Here, as in Lopez, the power that Congress hasasserted is essentially limitless; the existence of findings or documentation,standing alone, does not provide the type of meaningful limitation on congressionalpower required by a Constitution that withholds from Congress "a generalpolice power of the sort retained by the States." Id. at 567, 115 S.Ct. 1624.
2.
Appellants also argue that section 13981 is a "civil rights" statute,see 42 U.S.C. § 13981(a) (noting purpose of Act "to protect thecivil rights of victims of gender motivated violence"), and as suchcannot offend the first principles of federalism because civil rights representsan area of "quintessential federal responsibility." Supp. Br.of Intervenor United States at 6; see also Br. of Intervenor United Statesat 32 (same).

It is unquestionably true that Congress has traditionally assumed an essentialrole in enacting legislation to protect civil rights and to root out discriminationand its vestiges. However, the Congress has never asserted a general authority,untethered to any specific constitutional power, to enact such legislation.And the Supreme Court has never upheld such legislation solely for the reasonthat it is civil rights in character. Appellants do not contend otherwise,nor do they really even contend seriously that the Court should do so. Instead,as would be expected under our Constitution of enumerated powers, the Courthas upheld such legislation, as all other legislation, only when it hasbeen enacted in exercise of a specific power conferred upon Congress bythe Constitution. Compare Heart of Atlanta Motel, Inc. v. United States,379 U.S. 241, 261-62, 85 S. Ct. 348, 13 L.Ed.2d 258 (1964) (upholding TitleII of the Civil Rights Act of 1964 under Commerce Clause of Article I),and Katzenbach v. McClung, 379 U.S. 294, 305, 85 S. Ct. 377, 13 L.Ed.2d290 (1964) (same), with Lopez, 514 U.S. at 559-60, 115 S. Ct. 1624 (describingHeart of Atlanta and McClung as cases upholding regulation governing economicactivity and therefore falling comfortably within the contours of the Commercepower); id. at 573-74, 115 S. Ct. 1624 (Kennedy, J., concurring) (same).In fact, the Court has not hesitated to invalidate even the most paradigmaticof civil rights initiatives, like the Civil Rights Acts of 1871 and 1875,when there was lacking such support in the Constitution. See United Statesv. Harris, 106 U.S. 629, 1 S. Ct. 601, 27 L.Ed. 290 (1883); Civil RightsCases, 109 U.S. 3, 3 S. Ct. 18, 27 L.Ed. 835 (1883).

Unlike those civil rights laws that have been readily enacted by Congressand readily sustained by the Supreme Court, however, section 13981 is untetheredto, and otherwise unsupported by, any such enumerated power. Although appellantsattempt to justify section 13981 as a legitimate exercise of Congress' powerover interstate commerce, the intrastate, noncommercial violence reachedby the section, and its consequences, are far removed from interstate "commercialconcerns that are central to the Commerce Clause." Lopez, 514 U.S.at 583, 115 S. Ct. 1624 (Kennedy, J., concurring).

Moreover, the conduct targeted by section 13981 bears little resemblanceto the discriminatory state denial of equal protection or other conductthat is the concern of the Reconstruction Amendments. See infra Part IV.Although assertedly enacted out of concern, in part, for inadequate statelaw enforcement, the particular shortcomings ascribed by Congress to theStates are not so much intentional-and thus unconstitutional- discriminationby the States, but rather the failure, despite "fervent" and "sincere"efforts, S. Rep. No. 102-197,at 39; S. Rep. No. 101-545, at 33, to eradicatethe "subtle prejudices" and "stereotypes" that preventthe victims of gender-motivated crimes from obtaining legal vindicationin the state courts, S. Rep. No. 102- 197, at 39. And the legislation doesnot even address these shortcomings directly by regulating the States ortheir officials, but, instead, creates a cause of action against privateindividuals. The reach of section 13981 is not even limited to private actsof violence committed with the active connivance of the States or theirofficials, or to private acts of violence purposely aimed at depriving thevictims of equal access to legal redress or other constitutional rights.Accordingly, not even appellants seriously contend that the purely privategender-motivated violence reached by section 13981 itself violates the Constitution.See, e.g., Reply Br. of Intervenor United States at 3 ("To be sure,§ 1 of the Fourteenth Amendment speaks to state action and does notproscribe purely private conduct."); Br. of Intervenor United Statesat 21 (similar).

And, not only does section 13981 regulate wholly intrastate and privateconduct, but the conduct regulated also falls within the most traditionalof state concerns. That is, Congress' motive notwithstanding, the legislationindisputably shifts power from the States to the federal government, blurringthe "distinct and discernable lines of political accountability"required by our Constitution. See Lopez, 514 U.S. at 576, 115 S. Ct. 1624(Kennedy, J., concurring).17
If we were to hold that a statute like section 13981, which regulates purelyprivate, noneconomic activity at the very core of traditional state concernand has only the most attenuated relation to interstate commerce, couldnonetheless be sustained under the Commerce Clause based upon no more thanthe kind of generalized findings of state shortcomings made here, then Congresscould circumvent the constitutional limits on federal power imposed by boththe Commerce Clause and the Fourteenth Amendment, see infra Part IV, andclaim a general police power, because charges that States have failed fullyto eradicate or remedy bias can be made about nearly every area of traditionalstate concern. See, e.g., Leslie Bender & Perette Lawrence, Is TortLaw Male?: Foreseeability Analysis and Property Managers' Liability forThird Party Rapes of Residents, 69 Chi.-Kent L. Rev. 313 (1993) (tort law);Jane Goodman et al., Money, Sex, and Death: Gender Bias in Wrongful DeathDamage Awards, 25 Law & Soc'y Rev. 263 (1991) (same); Martha Chamallas& Linda K. Kerber, Women, Mothers, and the Law of Fright: A History,88 Mich. L. Rev. 814 (1990) (same); Mary Pat Treuthart & Laurie Woods,Mediation-A Guide for Advocates and Attorneys Representing Battered Women13-14, 75 (1990) (contract law); Sylvia A. Law & Patricia Hennessey,Is the Law Male?: The Case of Family Law, 69 Chi.-Kent L. Rev. 345 (1993)(family law). In fact, the very findings on which appellants rely in thiscase would, themselves, justify not only section 13981, but the federalizationof all crimes against women, see, e.g., S. Rep. No. 103-138, at 49 (citingstudies concluding "that crimes disproportionately affecting womenare often treated less seriously than comparable crimes affecting men").For that matter, they would justify federal regulation, and even occupation,of the entire field of family law, including divorce, alimony, child custody,and the equitable division of property. See S. Rep. No. 102-197, at 43 n.40 (citing studies of state task forces on gender bias that find bias andstate failings throughout the entire area of domestic relations and familylaw); S. Rep. No. 103-138, at 49 n. 52 (similar).

Accordingly, although we respect the concerns underlying appellants' argumentthat Congress has a general power to pass "civil rights" statutesand acknowledge the argument's intuitive appeal, the Constitution does notextend to Congress the unlimited power that would necessarily follow werewe to accept the argument. To the contrary, the extension of such powerto the Congress solely on the grounds that appellants urge would be in contraventionboth of Lopez and of the first principles of federalism on which that opinionrests.
E.
Despite their half-hearted attempts to distinguish Lopez, it is apparentthat, ultimately, Brzonkala and the government (not to mention the dissent)would have us ignore that decision altogether. Not only do appellants clearly,though mistakenly, regard Lopez as at most a decision of little importance,they also make no serious attempt to come to grips with the core reasoningof that opinion. Instead, appellants merely rely on arguments that repeatthe opinions of the dissenting Justices in Lopez but are squarely foreclosedby the Lopez majority, even while criticizing the district court for itsefforts to understand and apply the Lopez analysis. Unlike Brzonkala andthe government, however, we are unwilling to consign the Supreme Court'smost significant recent pronouncement on the Commerce Clause to the statusof inconvenient but ultimately insignificant aberration.

Throughout their briefs, both Brzonkala and the government repeatedly notethat Lopez reaffirmed, rather than overturned, the Supreme Court's CommerceClause decisions of the last sixty years. Apparently on this ground, theyalso repeatedly assert that Lopez did not work any change in the SupremeCourt's Commerce Clause jurisprudence, or in the framework for analyzinga statute's constitutionality under the Commerce Clause. See, e.g., Br.of Appellant Brzonkala at 35 ("Rather than creating a new standard,the Lopez Court merely declined to expand the Commerce Clause's scope.");Br. of Intervenor United States at 27 (asserting that, in Lopez, "theSupreme Court reaffirmed its previous half century of Commerce Clause jurisprudence").

We find such a superficial understanding of Lopez, especially by the UnitedStates, surprising. Although it is true that the Lopez Court did not disturbthe precise holdings of any previous Supreme Court precedents, it is equallytrue that the Lopez Court renounced or limited some of the most sweepingreasoning and dicta of its Commerce Clause opinions:
Admittedly, some of our prior cases have taken long steps down that road[toward converting congressional authority under the Commerce Clause intoa police power], giving great deference to congressional power. The broadlanguage in these opinions has suggested the possibility of additional expansion,but we decline here to proceed any further.
Lopez, 514 U.S. at 567, 115 S. Ct. 1624 (citation omitted).18
Not only did the Court specifically reject earlier statements suggestingthat congressional power extends to the regulation of activities that merelyaffect interstate commerce, id. at 559, 115 S. Ct. 1624 (admitting that"our case law has not been clear whether an activity must 'affect'or 'substantially affect' interstate commerce" to fall within the Commercepower, and approving, "consistent with the great weight of our caselaw," the latter analysis as "the proper test"); cf. id.at 616, 115 S. Ct. 1624 (Breyer, J., dissenting) ("[T]he word 'substantial'implies a somewhat narrower power than recent precedent suggests."),but it also drew a clear distinction between regulations of economic andnoneconomic activities, see supra note 5 and accompanying text, limitingto the former category the reach of the authority and reasoning of its mostpermissive Commerce Clause cases. Compare id. at 560, 115 S. Ct. 1624 (majority)("Even Wickard, which is perhaps the most far reaching example of CommerceClause authority over intrastate activity, involved economic activity ina way that the possession of a gun in a school zone does not."), withid. at 561, 115 S. Ct. 1624 (holding that because GFSZA had "nothingto do with 'commerce' or any sort of economic enterprise," it couldnot "be sustained under [the Court's] cases upholding regulations ofactivities that arise out of or are connected with a commercial transaction,which viewed in the aggregate, substantially affects interstate commerce");cf. id. at 627-28, 115 S. Ct. 1624 (Breyer, J., dissenting) (noting theCourt's "apparent belief that it can reconcile its holding with earliercases by making a critical distinction between 'commercial' and non-commercial'transaction[s]'").

Furthermore, the Court elevated to a majority opinion statements from previousconcurring opinions that "[s]imply because Congress may conclude thata particular activity substantially affects interstate commerce does notnecessarily make it so," Lopez, 514 U.S. at 557 n.2, 115 S. Ct. 1624(quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S.264, 311, 101 S. Ct. 2352, 69 L.Ed.2d 1 (1981) (Rehnquist, J., concurringin judgment)) (internal quotation marks omitted), and that "[w]hetherparticular operations affect interstate commerce sufficiently to come underthe constitutional power of Congress to regulate them is ultimately a judicialrather than a legislative question, and can be settled finally only by thisCourt," id. (quoting Heart of Atlanta Motel, Inc. v. United States,379 U.S. 241, 273, 85 S. Ct. 348, 13 L.Ed.2d 258 (1964) (Black, J., concurring))(internal quotation marks omitted). Thus, the Court made clear that courtsmay not merely defer to a legislative judgment that an activity sufficientlyaffects interstate commerce to satisfy the substantially affects test, butmust instead independently evaluate constitutionality under the CommerceClause, id. at 562, 115 S. Ct. 1624, a proposition that had not always beenapparent from the earlier cases, see, e.g., United States v. Lopez, 2 F.3d1342, 1362-63 (5th Cir.1993) (suggesting that findings appeared to be dispositiveunder then existing Supreme Court authority), aff'd, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

Finally, the Lopez Court was emphatic that it would not find an activitysufficiently related to interstate commerce to satisfy the substantiallyaffects test in reliance upon arguments that lacked any principled substantivelimitations and that consequently would justify plenary federal regulationof anything. See, e.g., Lopez, 514 U.S. at 564, 115 S. Ct. 1624 ("paus[ing]to consider the implications of the Government's arguments" and notingthat "[u]nder the theories that the Government presents in supportof § 922(q) [the GFSZA], it is difficult to perceive any limitationon federal power"); id. at 567, 115 S. Ct. 1624 (refusing "topile inference upon inference in a manner that would bid fair to convertcongressional authority under the Commerce Clause to a general police powerof the sort retained by the States").

Thus, although Lopez may have left intact all of the Supreme Court's previousholdings, and even the analytical framework for determining the constitutionalityof regulations of economic activity, see, e.g., id. at 573-74, 115 S. Ct.1624 (Kennedy, J., concurring) (noting that "[s]tare decisis operateswith great force in counseling us not to call in question the essentialprinciples now in place respecting the congressional power to regulate transactionsof a commercial nature" and that precedents upholding regulations of"commercial transactions" were "within the fair ambit ofthe Court's practical conception of commercial regulation and are not calledin question by our decision today" (emphases added)), appellants' suggestionthat Lopez changed nothing at all is in serious error.

In accordance with their misunderstanding of Lopez as an aberrational decisionthat worked little change in the Supreme Court's Commerce Clause jurisprudence,appellants hardly even cite the opinion at all, let alone those portionsof the opinion that set forth the Court's holding and essential reasoning.

Although Lopez is emphatically clear that the Gun-Free School Zones Act'sprincipal defects were its failure either to regulate an economic activityor to include a jurisdictional element-so clear, it bears repeating, thatthe Court both began and ended its opinion, as well as framed its holding,by reference to these defects, see, e.g., id. at 551, 115 S. Ct. 1624; id.at 557, 115 S. Ct. 1624-appellants neither discuss nor even cite these aspectsof the opinion. Instead, appellants completely ignore the crucial distinctionsdrawn by the Supreme Court between regulations of economic and noneconomicactivities, and between regulations that include a jurisdictional elementand those that do not, and even chastise the district court for consideringsection 13981's failure to regulate an economic activity or to include ajurisdictional element.19 See, e.g., Br. of Appellant Brzonkala at 34 (criticizingthe district court for "ignor[ing] the last half-century of CommerceClause cases prohibiting public and private discrimination that in the aggregatesubstantially affects interstate commerce," but citing only to casesupholding regulations of economic activities); id. at 38 n.32 (similar);id. at 39 n.34 (asserting that "Lopez does not . . . preclude federalcriminal statutes when state law enforcement has proven inadequate,"but citing only to a lower court decision upholding a statute that containeda jurisdictional element); id. at 36 ("Without any basis, the courtbelow interpreted Lopez as limiting valid Commerce Clause legislation tolaws that (1) have a jurisdictional element linking the activity to interstatecommerce, or (2) regulate economic activity. Nothing in Lopez imposes thoseprerequisites." (citation and footnote omitted)); Reply Br. of IntervenorUnited States at 10 (similar); Supp. Br. of Appellant Brzonkala at 4 (similar).Compare Supp. Br. of Intervenor United States at 4 ("[T]he SupremeCourt's concern with federalism did not lead it to overrule any precedentor to confine Congress's authority under the Commerce Clause to the regulationof economic activity."), and Br. of Intervenor United States at 18-19(similar), with id. at 33-34 (criticizing the district court for placing"considerable emphasis" on section 13981's failure to regulateeconomic activity).20

It is evident that appellants' refusal to acknowledge the clear distinctionsdrawn by the Lopez Court between laws that regulate economic activitiesor include jurisdictional elements and those that do not cannot be squaredwith the majority or concurring opinions in Lopez. And, indeed, their attemptsto paper over these distinctions and persuade us to sustain section 13981on the authority of Wickard and similar cases are but echoes of the argumentsthat failed to persuade a majority of the Court in Lopez. See, e.g., Lopez,514 U.S. at 608-09, 115 S. Ct. 1624 (Souter, J., dissenting) (recognizingbut criticizing the importance placed by the Court on both distinctions);id. at 616, 115 S. Ct. 1624 (Breyer, J., dissenting) (arguing that Wickard-stylereasoning applies to the evaluation of all congressional regulations); id.at 627-30, 115 S. Ct. 1624 (recognizing, but criticizing, Court's distinctionbetween regulation of economic and noneconomic activities).

Similarly, despite the Lopez Court's clarification of the judicial rolein independently evaluating constitutionality under the Commerce Clause,see Lopez, 514 U.S. at 557 n. 2, 115 S. Ct. 1624; id. at 562-63, 115 S.Ct. 1624, appellants also ignore the clear import of these passages, seizinginstead upon references by the Court to "rational basis" review,see id. at 557, 115 S. Ct. 1624 (describing the Court's post-New Deal CommerceClause analysis); id. at 564, 115 S. Ct. 1624(describing the government'sargument), in a transparent attempt to relegate the decision to insignificance.21Although Lopez undoubtedly preserves a healthy degree of judicial deferenceto reasonable legislative judgments of fact, it is plain that appellantsdo not by their incessant invocations of "rational basis review"contemplate merely such deference. Rather, it is evident that they use thisfashionable label of judicial restraint to disguise their advocacy of adeference so absolute as to preclude any independent judicial evaluationof constitutionality whatsoever-a deference indistinguishable from judicialabdication. And the dissent does likewise; indeed, laying bare appellants'and the dissent's standard of review to an extent that will surely provedisquieting to appellants, the dissent, after announcing the "rationalbasis" standard of review, offers not a single sentence-not one-ofindependent analysis of whether gender-motivated violence substantiallyaffects interstate commerce.

Such a view of the judicial role obviously cannot be reconciled with theopinions of the Court and of the concurring Justices in Lopez. And it isclear from the paucity of attention given by appellants and the dissentto these opinions that they do not derive their understanding of the judicialrole in evaluating constitutionality under the Commerce Clause from thesesources, but rather, again, from the Lopez dissents, the core rhetoric andreasoning of which their arguments closely parallel. Compare Br. of AppellantBrzonkala at 37 ("Rather than apply the traditional Commerce Clauseanalysis ratified by Lopez, the District Court instead substituted its ownanalysis and judgment."); id. (criticizing district court for "abandon[ing]"the "rational basis test"); Br. of Intervenor United States at31 (similar); Reply Br. of Intervenor United States at 12 ("The VAWAmay be invalidated only if the Court chooses to set aside the findings ofa direct connection between gender-motivated violence and interstate commerce.. . . [T]his task requires broad scale second-guessing of legislative findingsand judgment."); and Br. of Intervenor United States at 31 (similar),with Lopez, 514 U.S. at 603, 115 S. Ct. 1624 (Souter, J., dissenting) (invokingrational basis review); id. at 604, 115 S. Ct. 1624 ("The practiceof deferring to rationally based legislative judgments is a paradigm ofjudicial restraint." (internal quotation marks and citation omitted));id. at 604-07, 115 S. Ct. 1624 (discussing the genesis of rational basisreview); id. at 608, 115 S. Ct. 1624 (decrying the majority's "qualificationof rational basis review"); id. at 609, 115 S. Ct. 1624 (stating thatthe implications of the Court's opinion could not "square with rationalbasis scrutiny"); id. at 614-15, 115 S. Ct. 1624 ("Because JusticeBreyer's opinion demonstrates beyond any doubt that the Act in questionpasses the rationality review that the Court continues to espouse, today'sdecision may be seen as only a misstep. . . ."); id. at 616-17, 115S. Ct. 1624 (Breyer, J., dissenting) (invoking rational basis review); id.at 618-25, 115 S. Ct. 1624 (purportedly applying rational basis review);and id. at 631, 115 S. Ct. 1624 ("Upholding this legislation woulddo no more than simply recognize that Congress had a 'rational basis' forfinding a significant connection between guns in or near schools and (throughtheir effect on education) the interstate and foreign commerce they threaten.").

Whether one agrees or disagrees with our conclusion, it is the majority,not the dissent, that has undertaken the "rational basis" reviewcontemplated by the Court in Lopez. That is, having been presented withCongress' findings on the matter, we have "independent[ly] evaluat[ed]""whether a rational basis exist[s] for concluding that a regulatedactivity [here, gender-motivated violence] sufficiently affect[s] interstatecommerce," to justify the exercise of Congress' broad powers underArticle I, section 8. And we have done this mindful of the Supreme Court'spointed admonitions that "[s]imply because Congress may conclude thata particular activity substantially affects interstate commerce does notnecessarily make it so" and that "[w]hether particular operationsaffect interstate commerce sufficiently . . . is ultimately a judicial ratherthan a legislative question." Lopez, 514 U.S. at 557 & n. 2, 562,115 S. Ct. 1624 (internal quotation omitted). In this undertaking emphaticallyrequired by the Supreme Court in Lopez, appellants would have us only half-heartedlyengage and the dissent would have us engage not at all.

Finally, not content simply to emasculate the judicial role in the determinationof whether Congress has exceeded its constitutional authority, appellantsalso would disregard the first principles of federalism that collectivelyconstitute the infrastructure of the majority opinion in Lopez, only grudginglyacknowledging even their existence. See Reply Br. of Intervenor United Statesat 14; Supp. Br. of Intervenor United States at 4. Specifically, like thedissent, which at the same time that it roundly criticizes us for attemptinga principled line between that which is "truly national" and thatwhich is "truly local," Lopez, 514 U.S. at 567-68, 115 S. Ct.1624, tellingly omits quotation of all of the passages from Lopez reflectingthe Court's commitment to such a limitation on the Commerce power,22 appellantsnever address either the Lopez Court's concern with the implications ofthe government's arguments or its refusal to rely upon arguments that lackany principled limitations and would justify federal regulation of any activity.Instead, they simply note a series of particular characteristics of section13981 that they believe minimize the statute's disruption of the balancebetween state and federal authority, such as its partial reliance on statelaw in defining the conduct that it regulates; its exclusion of supplementaljurisdiction over divorce, custody proceedings, and similar matters; andits relatively narrow focus on gender animus.

Not only do these statute-specific characteristics not eliminate the impactof section 13981 on the balance of federal and state authority, see supraat 840-42, 852-53 & nn. 10, 16, the logic of the argument that appellantsadvance for sustaining the statute is independent of these characteristics;that is, the argument would require us to sustain section 13981 even withoutthe particular characteristics upon which the government relies to distinguishthe provision. For the essence of appellants' contention is that Congresscan regulate any problem solely by finding that it affects the economy andhas not been fully remedied by the States. See, e.g., Br. of IntervenorUnited States at 32; but cf. Violent Crime Control and Law Enforcement Actof 1994, Pub. L. No. 103-322, § 320904, 108 Stat. 1796, 2125 (addingto GFSZA, inter alia, statutory finding that the States are unable to curbgun-related violence). But if Congress has found that the States have failedadequately to address violence against women, and that such violence affectsthe economy, then surely it need not rely on state law definitions of violentcrime, but can itself define such crime, preempting the States' criminaland tort laws altogether. And if Congress has found that the States havefailed to eradicate gender bias, a problem that is not limited to violentcrime but permeates the law generally, and family law in particular, thenCongress need not proscribe federal jurisdiction over the core areas offamily law, but can extend supplemental jurisdiction over these areas, oreven regulate them directly and perhaps exclusively, because issues of divorce,alimony, the equitable division of property, and child custody, like violentcrime, indisputably have ultimate economic effects. Furthermore, if thecongressional findings in this case as to the shortcomings of the Statesand the effects of violence against women would support the regulation ofgender-motivated violence against women, then they would also support theregulation of all violence against women. Indeed, the States' failure toeliminate gender-motivated violent crime can surely be cited as a specificexample of failure to resolve fully not only problems of animus, but alsothe scourge of violent crime generally. And it cannot be doubted that ifgender-motivated violent crime affects the economy, a fortiori all violentcrime affects the economy. Accordingly, there is no reason that Congressmust, under the logic of appellants' arguments, limit its reach to violentcrime motivated by gender animus, rather than assume control over the entirefield of violent crime, or, for that matter, all crime within all of theStates.

The dissent stands in what we suspect will be, for appellants, uncomfortabletestament to this infinite reach of appellants' argument. In the singleparagraph of over arching significance in the dissent, our colleagues donothing more than recite the following statement from the conference committeeand assert, in ipse dixit protestingly characterized as "independentevaluation," that gender-motivated violence really does substantiallyaffect interstate commerce:
[C]rimes of violence motivated by gender have a substantial adverse effecton interstate commerce, by deterring potential victims from traveling interstate,from engaging in employment in interstate commerce, and from transactingwith business, and in places involved, in interstate commerce . . . by diminishingnational productivity, increasing medical and other costs, and decreasingthe supply of and the demand for interstate products. . . . [M]y independentevaluation of Congress's "legislative judgment" compels me toconclude that Congress had a rational basis for finding that gender-basedviolence substantially affects interstate commerce.
Infra at 913, 916 (quoting H.R. Conf. Rep. No. 103-711, at 385, 1994 U.S.C.C.A.N.at 1853; citation and footnote omitted); see also id. at 916- 17 n. 5.

But with only a moment's reflection it is apparent- as the dissent certainlyrecognizes-that what is said by the dissent (and Congress) to be true ofgender-motivated violence is true of all crime many times over, as the simpledeletion of the phrases "motivated by gender" and "gender-based"from this passage confirms:
[C]rimes of violence have a substantial adverse effect on interstate commerce,by deterring potential victims from traveling interstate, from engagingin employment in interstate commerce, and from transacting with business,and in places involved, in interstate commerce . . . by diminishing nationalproductivity, increasing medical and other costs, and decreasing the supplyof and the demand for interstate products. . . . [M]y independent evaluationof Congress's "legislative judgment" compels me to conclude thatCongress had a rational basis for finding that violence substantially affectsinterstate commerce.
Cf. Lopez, 514 U.S. at 564, 115 S. Ct. 1624 (rejecting argument from "costsof crime" and "national productivity" as leading to congressionalpower to "regulate not only all violent crime, but all activities thatmight lead to violent crime" and as eliminating "any limitationon federal power, even in areas such as criminal law enforcement or educationwhere States historically have been sovereign").23 The implicationsof such reasoning for the sovereign States need hardly be particularized.

To these sweeping implications of their arguments, appellants offer littleresponse other than that Congress here has enacted a more limited statute.Such a meager response is palpably insufficient, although we acknowledgethat it may well be the one even remotely plausible argument available inthe wake of Lopez.

The only other argument, which appellants advisedly forgo, is that of ourcolleagues in dissent, who would, in blissful denial of the Court's mostrecent precedents on Our Federalism, proceed to import into Commerce Clauseanalysis a doctrine whose legitimacy even in the context in which it wasfashioned was in doubt from inception, see Garcia v. San Antonio Metro.Transit Auth., 469 U.S. 528, 105 S. Ct. 1005, 83 L.Ed.2d 1016 (1985), andhold that Congress alone is constitutionally responsible for the protectionof the sovereign States. Thus says the dissent in a passage that is so startlingin its quaint innocence that it bears repetition in full:
My colleagues in the majority iterate and reiterate that the enumerationof powers in the Constitution reserves authority to the states, that oursis a system of dual sovereignty, and that the states must operate as independentgovernmental bodies for that system to continue to exist. No one doubtsthe validity of any of these principles. The critical question, however,is who decides how they are to be upheld. The Constitution itself providesa clear and specific answer to that question. It allocates the fundamentalpower of government- the power of legislation-to Congress. Congress is notsome central dictatorial assembly with interests independent of and antitheticalto the states. Rather, Congress is composed entirely of members electedfrom each state to represent the interests of the people of that state,and is specifically designed to preserve state authority and protect stateinterests. Congressional legislation accordingly is not, as the majoritysuggests, a command from an autonomous central power to totally subjugatedstates. Congressional legislation is instead the product of the constitutionallycoordinated authorities of the states, the localities, and the people. Courtsthus have slender authority to invalidate the result of Congress's legislativeprocess in order to protect the states or localities, unless there is somereason to suspect that the legislative process has been or will be unreliable.
Infra at 932-33.
As the Chief Justice (then-Justice Rehnquist) and Justice O'Connor mighthave said in their impassioned dissents predicting that the "Courtwill in time" overrule Garcia and "again assume its constitutionalresponsibility," Garcia, 469 U.S. at 580, 589, 105 S. Ct. 1005 (O'Connor,J.,dissenting, joined by Powell and Rehnquist, JJ.); see also id. at 580,105 S. Ct. 1005 (Rehnquist, J., dissenting), such is nothing short of puttingthe fox in charge of the chicken coop. For, as Justice O'Connor wrote incritique of the Garcia majority, under Justice Blackmun's formulation, "allthat stands between the remaining essentials of state sovereignty and Congressis the latter's underdeveloped capacity for self-restraint." And,
[i]f federalism so conceived and so carefully cultivated by the Framersof our Constitution is to remain meaningful, [the courts] cannot [so] abdicate[their] constitutional responsibility to oversee the Federal Government'scompliance with its duty to respect the legitimate interests of the States.
Id. at 589, 105 S. Ct. 1005 (O'Connor, J., dissenting).

One need not rely upon the prescience of the Chief Justice and Justice O'Connor,however, for the conclusion that the dissent's view of federalism bearsno resemblance to the Supreme Court's. He need only look to the Court'sdecision in Lopez itself where, in virtual anticipation of the very argumentmade by the dissent, Justice Kennedy wrote for himself, for Justice O'Connor,and just as assuredly for the three remaining Justices of the majority,that
the absence of structural mechanisms to require [Congress] to undertakethis principled task [of ensuring the proper federal balance], and the momentarypolitical convenience often attendant upon their failure to do so, argueagainst a complete renunciation of the judicial role. Although it is theobligation of all officers of the Government to respect the constitutionaldesign, the federal balance is too essential a part of our constitutionalstructure and plays too vital a role in securing freedom for us to admitinability to intervene when one or the other level of Government has tippedthe scales too far.
Lopez, 514 U.S. at 578, 115 S. Ct. 1624 (Kennedy, J., concurring, joinedby O'Connor, J.).

Thus does the dissent, even more than do appellants, fundamentally misapprehendthe Court's recent pronouncements on our dual sovereignty and the affirmativeconstitutional obligation of the judiciary to safeguard the sovereigntyof the States against congressional encroachment. As Lopez forcefully remindsus, our federal system of government exists not as a mere matter of legislativegrace, as the dissent (and ultimately appellants) would have, but ratheras a matter of constitutional design.
IV.
Although in the wake of City of Boerne appellants have returned to defendsection 13981 primarily as a constitutional exercise of Congress' powerunder the Commerce Clause, they still contend alternatively, though nowless enthusiastically, that section 13981 is a constitutionally legitimateexercise of Congress' power under Section 5, one of the explicit bases uponwhich section 13981 was enacted. See 42 U.S.C. § 13981(a) (describingstatute as adopted "[p]ursuant to the affirmative power of Congressto enact this part . . . under section 5 of the Fourteenth Amendment . ..").

The Fourteenth Amendment, of course, provides in pertinent part as follows:
Section 1. No State shall . . . deny to any person within its jurisdictionthe equal protection of the laws.
Section 5. The Congress shall have power to enforce, by appropriate legislation,the provisions of this article.
U.S. Const. amend. XIV, §§ 1, 5. Appellants maintain that Congressproperly invoked Section 5 in enacting section 13981 because Congress concludedthat bias and discrimination against women in the state criminal justicesystems "often deprive[] victims of crimes of violence motivated bygender of equal protection of the laws and the redress to which they areentitled" and that section 13981 was "necessary to guarantee equalprotection of the laws." H.R. Conf. Rep. No. 103-711, at 385, reprintedin 1994 U.S. Code Cong. & Admin. News 1839, 1853. The remaining issuefor us, therefore, is whether section 13981 is "appropriate legislation"to "enforce" the substantive constitutional guarantee that "[n]oState . . . deny to any person within its jurisdiction the equal protectionof the laws." U.S. Const. amend. XIV, §§ 1, 5. In light ofSupreme Court precedent, and particularly given the Court's recent decisionin City of Boerne, we hold that it is not.
A.
Section 13981 creates a cause of action against private parties who commitacts of gender-motivated violence, and that action may be pursued withoutregard to whether the State connived in those acts or otherwise violatedthe particular plaintiff's constitutional rights. To sustain section 13981under Section 5 of the Fourteenth Amendment, therefore, we would have tohold that Section 5 permits Congress to regulate purely private conduct,without any individualized showing of unconstitutional state action. Because,under the Amendment's text, its history, and a consistent line of SupremeCourt precedent dating from just after the Amendment's ratification to thepresent, it is established that Congress may not regulate purely privateconduct pursuant to its Fourteenth Amendment enforcement power, we cannotso hold.
1.
Section 1 of the Fourteenth Amendment, which defines the rights "enforceable"by Congress through "appropriate legislation," provides that "[n]oState shall . . . deny to any person within its jurisdiction the equal protectionof the laws." U.S. Const. amend. XIV, § 1 (emphasis added). TheSupreme Court observed in United States v. Guest, 383 U.S. 745, 86 S. Ct.1170, 16 L.Ed.2d 239 (1966), that this prohibition is directed exclusivelyto the States:
The Equal Protection Clause does not add anything to the rights which onecitizen has under the Constitution against another. . . . This has beenthe view of the Court from the beginning [and] [i]t remains the Court'sview today.
Id. at 755, 86 S. Ct. 1170 (internal quotation marks and citations omitted).In the thirty years since Guest, not only the Court as a whole but nearlyevery Member of the Court individually has expressly embraced this longstandingview as to the state action limitation of the Amendment. In Lugar v. EdmondsonOil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L.Ed.2d 482 (1982), the Court,characterizing its prior precedents as "insist[ing] that the conductallegedly causing the deprivation of a federal right be fairly attributableto the State," id. at 937, 102 S. Ct. 2744, wrote simply, but unequivocally,that "[b]ecause the [Fourteenth] Amendment is directed at the States,it can be violated only by conduct that may be fairly characterized as 'stateaction,'" id. at 924, 102 S. Ct. 2744. A year later, in Blum v. Yaretsky,457 U.S. 991, 102 S. Ct. 2777, 73 L.Ed.2d 534 (1982), the Court again forcefullystated the state action requirement: "[T]he principle has become firmlyembedded in our constitutional law that the action inhibited by the firstsection of the Fourteenth Amendment is only such action as may fairly besaid to be that of the States." Id. at 1002, 102 S. Ct. 2777 (internalquotation marks and citation omitted). And in Georgia v. McCollum, 505 U.S.42, 112 S. Ct. 2348, 120 L.Ed.2d 33 (1992), the Court observed that "[r]acialdiscrimination, although repugnant in all contexts, violates the Constitutiononly when it is attributable to state action." Id. at 50, 112 S. Ct.2348 (emphasis added). As the Court explained at some length in NCAA v.Tarkanian, 488 U.S. 179, 109 S. Ct. 454, 102 L.Ed.2d 469 (1988),
Embedded in our Fourteenth Amendment jurisprudence is a dichotomy betweenstate action, which is subject to scrutiny under the Amendment's Due ProcessClause, and private conduct, against which the Amendment affords no shield,no matter how unfair that conduct may be. As a general matter the protectionsof the Fourteenth Amendment do not extend to private conduct abridging individualrights. Careful adherence to the 'state action' requirement preserves anarea of individual freedom by limiting the reach of federal law . . .
Id. at 191, 109 S. Ct. 454 (internal quotation marks and citations omitted).

Even when they have not joined the Court's opinions in particular casesor have written separately, the individual Members of the Court have nothesitated to express their agreement that the Fourteenth Amendment confersrights only against the States. See Morse v. Republican Party, 517 U.S.186, 248, 116 S. Ct. 1186, 134 L.Ed.2d 347 (1996) (Kennedy, J., dissenting)("[W]ehave been cautious to preserve the line separating state action from privatebehavior that is beyond the Constitution's reach."); J.E.B. v. Alabama,511 U.S. 127, 150, 114 S. Ct. 1419, 128 L.Ed.2d 89 (1994) (O'Connor, J.,concurring) ("The Equal Protection Clause prohibits only discriminationby state actors."); McCollum, 505 U.S. at 59, 112 S. Ct. 2348 (Rehnquist,C.J., concurring); id. (Thomas, J., concurring in the judgment); id. at63, 112 S. Ct. 2348 (O'Connor, J., dissenting) (noting that distinctionbetween private and state action "appears on the face of the FourteenthAmendment"); id. at 69, 112 S. Ct. 2348 (Scalia, J., dissenting); Lugar,457 U.S. at 945, 102 S. Ct. 2744 (Powell, J., dissenting, joined by Rehnquistand O'Connor, JJ.) ("[The Fourteenth Amendment] does not create rightsenforceable against private citizens . . . but only against the States.").

Indeed, even Justices Brennan and Marshall, who typically advocated themost expansive interpretations of the Fourteenth Amendment, agreed thatthe Amendment extends only to state action. Justice Brennan, for example,dissenting in Blum, described the Fourteenth Amendment as "a restrainton the abuse of state power." Blum, 457 U.S. at 1012, 102 S. Ct. 2777(Brennan, J., dissenting). And Justice Marshall fully concurred in thatview of the reach of the Amendment. See Moose Lodge No. 107 v. Irvis, 407U.S. 163, 185, 92 S. Ct. 1965, 32 L.Ed.2d 627 (1972) (Brennan, J., dissenting,joined by Marshall, J.); cf. Tarkanian, 488 U.S. at 199, 109 S. Ct. 454(White, J., dissenting, joined by Brennan, Marshall, and O'Connor, JJ.)(stating issue as "whether the NCAA . . . became a state actor").

Unsurprisingly, in accord with its uniform understanding of Section 1 asconferring rights only against the States, the Court has consistently heldthat Congress' Section 5 power to enforce Section 1 is correspondingly limitedto remedial action against States and state actors. Thus, and significantlyfor the disposition of the question before us, as recently as 1997 in Cityof Boerne, the Court explained that Section 5 grants Congress only a "remedial"power to "make . . . effective" Section 1's "substantiveprohibitions against the States." 117 S. Ct. at 2165. Such "remedial"legislation, the Court emphasized, "should be adapted to the mischiefand wrong which the [Fourteenth] [A]mendment was intended to provide against"-unconstitutional action by the States. Id. at 2170 (internal quotation marksand citation omitted); see also id. at 2166 (that "Congress' §5 power [is] corrective or preventive, not definitional, has not been questioned");cf. Morse, 517 U.S. at 276, 116 S. Ct. 1186 (Thomas, J., dissenting, joinedby Rehnquist, C.J., and Scalia, J.) ("[I]t is well-established thatCongress may not regulate purely private behavior pursuant to its enforcementpower under the Fourteenth . . . Amendment[]."); Metro Broad., Inc.v. FCC, 497 U.S. 547, 605-06, 110 S. Ct. 2997, 111 L.Ed.2d 445 (1990) (O'Connor,J. dissenting, joined by Rehnquist, C.J., and Scalia and Kennedy, JJ.) ("Section5 empowers Congress to act respecting the States" and "providesto Congress a particular, structural role in the oversight of certain ofthe States' actions.").

These many and recent expressions by the Court of the reach of Sections1 and 5 of the Fourteenth Amendment rest firmly not only on the Amendment'splain language, but also on the legislative history and early jurisprudenceof the Amendment. In City of Boerne, the Court recounted the historicaljustification for its interpretation of the Amendment as limited to stateaction and Congress' power thereunder as limited to the enactment of legislationaimed at the States. In particular, the Court contrasted the language andoriginal understanding of the Amendment, as adopted, with the language andunderstanding of an earlier, rejected draft of the Amendment. See generallyCity of Boerne, 117 S. Ct. at 2164-66. This earlier draft, the so- calledBingham Amendment, was reported early in 1866 by Republican RepresentativeJohn Bingham of Ohio to the House of Representatives on behalf of the JointCommittee on Reconstruction:
The Congress shall have power to make all laws which shall be necessaryand proper to secure to the citizens of each State all privileges and immunitiesof citizens in the several States, and to all persons in the several Statesequal protection in the rights of life, liberty, and property.
Cong. Globe, 39th Cong., 1st Sess. 1034 (1866), quoted in City of Boerne,117 S. Ct. at 2164. By its terms, this draft Amendment would have authorizedCongress to secure equality in the rights of life, liberty, and propertyof all citizens, by legislating directly upon these rights. Consequently,that proposed broad grant of congressional power quickly generated enormousopposition from members of the Reconstruction Congress who feared that acongressional power to legislate in such a manner would reduce the roleof the States to a virtual nullity. See, e.g., City of Boerne, 117 S. Ct.at 2164 (Bingham Amendment would permit "Congress to legislate fullyupon all subjects affecting life, liberty, and property, such that therewould not be much left for the State Legislatures.") (quoting Sen.Stewart); id. ("Members of Congress from across the political spectrumcriticized the Amendment, and the criticisms had a common theme: The proposedAmendment gave Congress too much legislative power at the expense of theexisting constitutional structure."); id. ("Democrats and conservativeRepublicans argued that the proposed Amendment would give Congress a powerto intrude into traditional areas of State responsibility, a power inconsistentwith the federal design central to the Constitution.").

In the face of these objections, the Bingham Amendment was tabled, and theJoint Committee on Reconstruction thereafter drafted the proposal that eventuallybecame the Fourteenth Amendment. This draft, like the Fourteenth Amendmentitself, "imposed several self-executing limits on the States,"117 S. Ct. at 2165, and also authorized Congress "to enforce, by appropriatelegislation, the provisions of this article," Cong. Globe, 39th Cong.,1st Sess. 2286, quoted in City of Boerne, 117 S. Ct. at 2165. Subsequentlyadopted and ratified (with modifications not relevant here), this Amendmentwas understood by the Reconstruction Congress only to grant Congress "thepower to make the substantive constitutional prohibitions against the Stateseffective." City of Boerne, 117 S. Ct. at 2165 (emphasis added); seealso id. (Section 5 "enables Congress, in case the States shall enactlaws in conflict with the principles of the amendment, to correct that legislationby a formal congressional enactment") (quoting Sen. Howard); id. (newdraft would "allow[] Congress to correct the unjust legislation ofthe States" (emphasis added)) (quoting Rep. Stevens); id. (new draftwould vest Congress with authority "to protect by national law theprivileges and immunities of all the citizens of the Republic . . . wheneverthe same shall be abridged or denied by the unconstitutional acts of anyState" (emphasis added)) (quoting Rep. Bingham).

Accordingly, this proposed Amendment did not raise the concerns that hadignited the debate over the Bingham Amendment, namely, that authorizingCongress to legislate directly upon individual rights would unduly expandCongress' powers at the expense of the States and authorize Congress "toprescribe uniform national laws with respect to life, liberty, and property."Id. As the Supreme Court emphasized in City of Boerne, this legislativehistory-that Congress explicitly considered an earlier draft Amendment thatwould have given Congress power to regulate purely private conduct, rejectedthat draft in the face of sharp opposition, and subsequently adopted anAmendment that gave Congress only the power to "enforce" a "provision"that "[n]o State shall . . . deny to any person within its jurisdictionthe equal protection of the laws"-has a "direct bearing on thecentral issue of defining Congress' enforcement power." Id. at 2164(emphasis added). In our view, and as the Supreme Court has consistentlyheld, this history confirms the plain-language and common-sense understandingthat Section 1 provides rights only against the States and that, correspondingly,Section 5 only grants Congress power to enforce the rights provided in Section1 through legislation directed against state action, not a power to regulatepurely private conduct.

This understanding is reinforced by two Supreme Court decisions renderednearly contemporaneously with the Amendment's ratification-United Statesv. Harris, 106 U.S. 629, 1 S. Ct. 601, 27 L.Ed. 290 (1883), and the CivilRights Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L.Ed. 835 (1883). Although theparticular prohibitions voided in these cases have since been properly sustainedunder different constitutional provisions, the broader holdings of thesecases limiting the Fourteenth Amendment and its enforcement power to stateaction remain unassailable. See infra Part IV.B; see also City of Boerne,117 S. Ct. at 2166, 2170 (quoting the Civil Rights Cases and citing withapproval both Harris and the Civil Rights Cases ).

In Harris, the Court invalidated section two of the Civil Rights Act of1871, which forbade any person to "conspire . . . for the purpose ofdepriving . . . any person . . . of the equal protection of the laws."106 U.S. at 632, 1 S. Ct. 601. The Court began its constitutional inquiryby emphasizing "that the government of the United States is one ofdelegated, limited, and enumerated powers," id. at 635, 1 S. Ct. 601,that " 'the powers not delegated to the United States by the Constitution,nor prohibited by it to the States, are reserved to the States respectively[,]or to the people,'" id. at 636, 1 S. Ct. 601 (quoting U.S. Const. amend.X), and, therefore, that section two of the Act could stand only if it werea valid exercise of one of Congress' enumerated powers.

The Court then went on to hold that section two of the Act, which punishedprivate individuals for interfering with other private individuals' rights,exceeded Congress' power under Section 5. In reaching this conclusion, theCourt first canvassed the language and meaning of the Fourteenth Amendmentand concluded both that Section 1 of that Amendment imposes an obligationonly upon the States and that Section 5 of the same authorizes Congressto enforce the guarantees of Section 1 only against the States themselves:
[The Fourteenth Amendment] is a guaranty of protection against the actsof the State government itself. It is . . . not a guaranty against the commissionof individual offenses; and the power of Congress . . . to legislate forthe enforcement of such a guaranty, does not extend to the passage of lawsfor the suppression of crime within the States. The enforcement of the guarantydoes not require or authorize congress to perform "the duty that theguaranty itself supposes it to be the duty of the State to perform, andwhich it requires the State to perform."
Id. at 638, 1 S. Ct. 601 (internal quotation marks omitted; emphasis added);see also id. at 638-39, 1 S. Ct. 601 ("The Fourteenth Amendment prohibitsa State from depriving any person of life, liberty, or property withoutdue process of law, or from denying to any person the equal protection ofthe laws; but this provision does not add anything to the rights of onecitizen against another. . . . The duty of protecting all its citizens inthe enjoyment of an equality of rights was originally assumed by the States,and it remains there. The only obligation resting upon the United Statesis to see that the States do not deny the right. This the amendment guarantees,and no more. The power of the national government is limited to this guaranty."(citation omitted)); Virginia v. Rives, 100 U.S. 313, 318, 25 L.Ed. 667(1879) ("The provisions of the Fourteenth Amendment of the Constitutionhave reference to State action exclusively, and not to any action of privateindividuals.").

Additionally, reasoned the Court, not only did section two apply to purelyprivate conduct, but it also did so without regard to the conduct of theState in which the underlying crime occurred and without so much as requiringan individualized showing that the State had unconstitutionally deprivedthe particular victim of a right protected by the Fourteenth Amendment:
The language of the amendment does not leave this subject in doubt. Whenthe State has been guilty of no violation of its provisions; when it hasnot . . . denied to any person within its jurisdiction the equal protectionof the laws; when, on the contrary, the laws of the State, as enacted byits legislative, and construed by its judicial, and administered by itsexecutive departments, recognize and protect the right of all persons, theamendment imposes no duty and confers no power upon Congress.
[Section two of the 1871 Act] is not limited to take effect only in casethe State shall . . . deny to any person the equal protection of the laws.It applies, no matter how well the State may have performed its duty. Underit private persons are liable to punishment for conspiring to deprive anyone of the equal protection of the laws enacted by the State.
In the indictment in this case, for instance, . . . there is no intimationthat the State [in which the acts occurred] has passed any law or done anyact forbidden by the Fourteenth Amendment.
Harris, 106 U.S. at 639-40, 1 S. Ct. 601. Thus, in spite of the "strenuous[] insiste[nce]" by the United States that the Act fell within Congress'Section 5 power, id. at 637, 1 S. Ct. 601, and even after affording thestatute the full presumption of constitutionality warranted for any enactmentof Congress, id. at 635, 1 S. Ct. 601, the Court invalidated this sectionof the 1871 Civil Rights Act as having exceeded Congress' power under Section5:
As, therefore, the section of the law under consideration is directed exclusivelyagainst the action of private persons, without reference to the laws ofthe State, or their administration by her officers, we are clear in theopinion that it is not warranted by any clause in the Fourteenth Amendmentto the Constitution.
Id. at 640, 1 S. Ct. 601 (emphasis added).

Later that same year, in the Civil Rights Cases, the Court similarly invalidatedthe public-accommodations provisions of the Civil Rights Act of 1875-provisionsthat are directly analogous to section 13981 in their application to purelyprivate conduct and establishment of civil liability-as beyond the scopeof Congress' Section 5 enforcement power. The 1875 Act created a substantiveright of equal access to "inns, public conveyances on land or water,theatres, and other places of public amusement . . . applicable alike tocitizens of every race and color." 109 U.S. at 9, 3 S. Ct. 18 (quotingCivil Rights Act of 1875, § 1). In order to enforce the right, theAct authorized criminal penalties against those who violated the right,and further authorized persons aggrieved by violations of the Act to bringprivate causes of action for damages against those who denied them theirrights to the enjoyment of public accommodations. Id.

Using language similar to that in Harris, the Court summarized the natureand extent of congressional enforcement power under Section 5 thus:
[Section 5 of the Fourteenth Amendment] invests Congress with power to enforceit by appropriate legislation. To enforce what? To enforce the prohibition.To adopt appropriate legislation for correcting the effects of such prohibitedState laws and State acts, and thus to render them effectually null, void,and innocuous. This is the legislative power conferred upon Congress, andthis is the whole of it. It does not invest Congress with power to legislateupon subjects which are within the domain of State legislation; but to providemodes of relief against State legislation, or State action, of the kindreferred to. It does not authorize Congress to create a code of municipallaw for the regulation of private rights; but to provide modes of redressagainst the operation of State laws, and the action of State officers executiveor judicial, when these are subversive of the fundamental rights specifiedin the amendment. Positive rights and privi- leges are undoubtedly securedby the Fourteenth Amendment; but they are secured by way of prohibitionagainst State laws . . . [and] by power given to Congress to legislate forthe purpose of carrying such prohibition into effect; and such legislationmust necessarily be predicated upon such supposed State laws or State proceedings,and be directed to the correction of their operation and effect.
Id. at 11-12, 3 S. Ct. 18 (emphases added). And, again, the Court explainedthat Congress may not regulate private conduct when legislating pursuantto Section 5:
In fine, the legislation which Congress is authorized to adopt in this behalfis not general legislation upon the rights of the citizen, but correctivelegislation, that is, such as may be necessary and proper for counteractingsuch laws as the States may adopt or enforce, and which, by the amendment,they are prohibited from making or enforcing, or such acts and proceedingsas the States may commit or take, and which, by the amendment, they areprohibited from committing or taking.
Id. at 13-14, 3 S. Ct. 18. A contrary interpretation of the EnforcementClause, the Court emphasized, would permit Congress to regulate directlythose rights protected against state interference by the Fourteenth Amendment,opening the floodgates to the promulgation of a congressional "codeof municipal law regulative of all private rights between man and man insociety." Id. at 13, 3 S. Ct. 18. Eventually, the Court observed, suchwould result in "Congress tak[ing] the place of the State legislaturesand . . . supersed[ing] them" in a manner "repugnant to the TenthAmendment of the Constitution," id. at 15, 3 S. Ct. 18.

Turning to the statute at issue, the Court held that the first two sectionsof the 1875 Act, like section two of the Civil Rights Act of 1871 invalidatedin Harris, exceeded Congress' Section 5 power. First, these provisions ofthe 1875 Act were illegitimate under the principle that Congress may notreach purely private conduct. As the Supreme Court put the point:
An inspection of the law shows that it makes no reference whatever to anysupposed or apprehended violation of the Fourteenth Amendment on the partof the States. It is not predicated on any such view. It proceeds ex directoto declare that certain acts committed by individuals shall be deemed offences,and shall be prosecuted and punished by proceedings in the courts of theUnited States.
Id. at 14, 3 S. Ct. 18 (emphasis added). Second, also like the provisionat issue in Harris, the challenged provisions were not limited by theirterms to take effect only in particular cases in which the plaintiff couldmake an individualized showing that the State had violated the victim'sFourteenth Amendment rights. Id. at 14, 3 S. Ct. 18 ("An inspectionof the law shows that it makes no reference whatever to any supposed orapprehended violation of the Fourteenth Amendment on the part of the States.").Rather, the provisions "applie[d] equally to cases arising in Stateswhich have the justest laws respecting the personal rights of citizens,and whose authorities are ever ready to enforce such laws, as to those whicharise in States that may have violated the prohibition of the amendment."Id. The Court concluded, therefore, that the Act was "not correctivelegislation," but rather was "primary and direct," "tak[ing]immediate and absolute possession of the subject of the right of admissionto inns, public conveyances, and places of amusement." Id. at 19, 3S. Ct. 18.

Finally, and in stark contrast to the approach urged on us by appellants,the Court emphasized, as it had in Harris, that a court entertaining a Section5 challenge is not simply to defer to the apparent conclusion of Congressthat the statute is within its constitutional powers, but rather is duty-boundto form "an independent judgment" regarding the constitutionalityof the statute and to "exercise [that judgment] according to the bestlights" available to the court. Id. at 10, 3 S. Ct. 18. Exercisingsuch judgment, the Court held that the provisions of the 1875 Act were nota permissible exercise of Section 5 power, and inter alia affirmed the judgmentsfor the defendants, including the defendant in the private cause of action.

In later cases, such as United States v. Guest, 383 U.S. 745, 86 S. Ct.1170, 16 L.Ed.2d 239 (1966),24 the Supreme Court clarified that the stateaction limitation on Congress' power under Section 5 permits Congress toregulate not only the States themselves and those on the States' payroll,but also those individuals who, through active connivance or conspiracywith the State, in effect act under color of state law or otherwise on behalfof the State. But the Court has never overruled either Harris or the CivilRights Cases.25 And, since Harris and the Civil Rights Cases, when the Courthas upheld the application of civil rights statutes to purely private conduct,it has conspicuously done so under provisions of the Constitution otherthan Section 5 which are not subject to state-action requirements.26

Thus, not only under the text and legislative history of the FourteenthAmendment, but also under a consistent line of Supreme Court cases fromHarris and the Civil Rights Cases to City of Boerne, it is now well establishedthat, under the Fourteenth Amendment, Congress may adopt "appropriatelegislation" to "enforce" its affirmative prohibitions againststate action and action taken under color of state law. Congress may alsoregulate the conduct of nominally private persons who act in connivancewith the State or whose conduct receives the "imprimatur of the State."And, although the Supreme Court has never so held and has not addressedthe issue in recent years, it has left open the possibility that Congressmay regulate private conduct pursuant to a statute that applies only onan individualized showing of a State's violation of the Fourteenth Amendment.But Congress may not regulate purely private conduct under the FourteenthAmendment. On this the Court has never wavered.

2.
City of Boerne, Harris, the Civil Rights Cases, and the principles underlyingthese cases confirm beyond question that section 13981 cannot be sustainedunder the Enforcement Clause of the Fourteenth Amendment. Section 13981unmistakably regulates private action; it creates a cause of action againstprivate individuals who commit acts of gender-motivated violence. Undersection 13981, liability is not limited to the States, to their officials,to those who act under color of state law, or even to those who activelyconspire with state officials. See 42 U.S.C. § 13981(c). Section 13981,like the statutes invalidated in Harris and the Civil Rights Cases, "proceedsex directo to declare that certain acts committed by individuals shall bedeemed offences, and shall be prosecuted and punished by proceedings inthe courts of the United States." Civil Rights Cases, 109 U.S. at 14,3 S. Ct. 18; cf. 42 U.S.C. § 13981(b) ("All persons within theUnited States shall have the right to be free from crimes of violence motivatedby gender."). Indeed, the complaint in the instant case, which clearlystates a claim under the statute-at least as to appellee Morrison-see supraPart II, does not even intone, much less allege, that appellees Morrisonor Crawford are state actors, that they acted under color of state law,or that they otherwise conspired with state officials to deprive appellantBrzonkala of her rights guaranteed by the Equal Protection Clause.

Further, like the statutes invalidated in Harris and the Civil Rights Cases,section 13981 is not limited to take effect only upon an individualizedshowing of unconstitutional state action. Indeed, liability under section13981 attaches without regard to whether the State adequately enforced itsapplicable criminal or civil laws. The statute even applies where, as here,no prior criminal or state civil complaint was even filed. 42 U.S.C. §13981(d)(2)(A) (cause of action may lie without regard to whether the predicateacts of violence "have actually resulted in criminal charges, prosecution,or conviction"); id. § 13981(e)(2) ("[n]othing in this sectionrequires a prior criminal complaint, prosecution, or conviction to establishthe elements of a cause of action"). Like the law invalidated by theSupreme Court in Harris, section 13981 is "directed exclusively againstthe action of private persons, without reference to the laws of the Statesor their administration by her officers." Harris, 106 U.S. at 640,1 S. Ct. 601. Section 13981 imposes liability for gender-motivated actsof violence, regardless of whether the predicate act of violence occursin a State that at the time has "the justest laws" and authorities"ever ready to enforce such laws," Civil Rights Cases, 109 U.S.at 14, 3 S. Ct. 18, or whether it occurs in a State that has unconstitutionallyturned a blind eye toward or deliberately contributed to or participatedin the particular act of violence.

The absence of any such jurisdictional limitations confirms that section13981, much like the provisions of the Civil Rights Acts of 1871 and 1875invalidated by the Supreme Court in Harris and the Civil Rights Cases respectively,is not legislation designed to "correct[] the effects of such prohibitedState laws and State acts, and thus to render them effectually null, void,and innocuous," id. at 11, 3 S. Ct. 18,but rather is "primaryand direct" legislation that "takes immediate and absolute possessionof the subject of" individual acts of violence. Id. at 19, 3 S. Ct.18. This is precisely the type of statute that the Supreme Court warnedover a century ago would, if held valid under Section 5 of the FourteenthAmendment, authorize a congressional "municipal code" throughwhich the federal government could act directly upon all the rights of life,liberty, and property of all citizens and thereby eliminate altogether anyrole for the several States.

Accordingly, although we afford section 13981 the full presumption of constitutionalitydue an enactment of a coordinate branch of the federal government, we musthold, in spite of the "strenuous[ ]insist[ence]" of the governmentto the contrary, see Harris, 106 U.S. at 637, 1 S. Ct. 601, that section13981 simply cannot be sustained under Section 5 of the Fourteenth Amendment.
B.
In obvious recognition of these fundamental principles, as well as the import,for the arguments they advance, of Harris, the Civil Rights Cases, and themodern precedents reaffirming the broader holdings of these cases as tothe scope of Section 1 and Section 5, appellants attempt variously to arguethat Harris and the Civil Rights Cases are distinguishable, that they havebeen sub silentio overruled or qualified, and that they have been explicitlyrepudiated by the Supreme Court and other authorities. But none of thesearguments is availing, as appellants themselves appear to understand.
1.
Albeit maunderingly, appellants first attempt to distinguish Harris andthe Civil Rights Cases, contending that, in these cases, the Court onlylimited Congress' power to regulate private conduct as an end in itself,and that those cases are inapplicable where, as here, Congress regulatessuch conduct not as an end in itself but only as a means to the legitimateend of remedying unconstitutional state action. To prove that Harris andthe Civil Rights Cases were thus reasoned, appellants identify three featuresof the Civil Rights Acts invalidated in those cases, features that theyargue establish that those statutes were enacted not out of concern forstate deprivations of equal protection, but rather only out of concern forpurely private conduct. Having so characterized the 1871 and 1875 CivilRights Acts and Congress' motives in enacting those statutes, appellantsargue that the Supreme Court's reasoning in invalidating those Acts establishesonly that legislation passed for the exclusive purpose of addressing privateconduct, unrelated to any concern for actions by the States, is impermissibleunder Section 5. Appellants then claim that the Civil Rights Acts of 1871and 1875 differ from section 13981 in that Congress' concern in the latterwas with unconstitutional conduct by the States and, accordingly, section13981 is a permissible exercise of Congress' remedial power under Section5.

The obvious flaw in this argument-apart from the fact that it finds no supportwhatsoever in the opinions of the Court in Harris and the Civil Rights Casesand, in fact, directly contradicts the reasoning of those cases-is its centralpremise that Congress enacted the Civil Rights Acts of 1871 and 1875 onlyout of a concern with private conduct and without any concern for unconstitutionalconduct by the States. This premise is demonstrably incorrect, as even acursory examination of the legislative history surrounding passage of theseActs discloses. Indeed, as an historical matter, it is indisputable thatCongress enacted those civil rights laws for the precise purpose of remedyingmassive and systemic violations of equal protection by the States. Thatsuch was Congress' motive in passing the 1871 Act is evident from the followingstatement as to the law's purpose by Representative James Garfield, a statementthat was frequently echoed by Representative Garfield's colleagues:
[T]he chief complaint is not that the laws of the State are unequal, butthat even where the laws are just and equal on their face, yet, by a systematicmaladministration of them, or a neglect or refusal to enforce their provisions,a portion of the people are denied equal protection under them.
Cong. Globe, 42d Cong., 1st Sess. app. 153 (1871) (statement of Rep. Garfield);see also id. at 653 (statement of Sen. Osborn) ("The State courts .. . are utterly powerless. . . . Justice is mocked, innocence punished,perjury rewarded, and crime defiant in the halls of justice"); id.at 457 (statement of Rep. Coburn) ("We find that the commission ofa certain class of high crimes is not noticed; that the offenders are notarrested, put on trial, or punished"); id. at 481 (statement of Rep.Wilson); id. at app. 78 (statement of Rep. Perry) ("Sheriffs, havingeyes to see, see not; judges, having ears to hear, hear not; witnesses concealthe truth or falsify it; grand and petit juries act as if they might beaccomplices."). And it is no less clear that the 1875 Act was passedfor the same purpose. As Senator Sumner, by reference to the South Carolinalegislature, representatively described the Congress' concern with the States'nonenforcement of their laws:
The Legislature of South Carolina has passed a law giving precisely theright contained in your "supplementary civil rights bill." Butsuch a law remains a dead letter on her statute-books, because the Statecourts, comprised largely of those whom the Senator wishes to obtain amnestyfor, refuse to enforce it.
Cong. Globe, 42d Cong., 2d Sess. 430 (1872) (quoting Letter of F.L. Cardozo,South Carolina Secretary of State) (internal quotation marks omitted); seealso id. at 726; 2 Cong. Rec. 383 (1874) (statement of Rep. Ransier) ("Mr.Speaker, the States will not give us protection in these matters, and welldo these 'State-rights' men know this."); id. at 457 (statement ofRep. Butler) ("The learned gentleman from Georgia [Mr. Stephens] agreeswith me that every colored man now has all the rights which this bill giveshim, but insists it is the States' duty to enforce them. But because ofprejudice the States will not enforce them."); 3 Cong. Rec. 945 (1875)(statement of Rep. Lynch) ("You may ask why we do not institute civilsuits in the State courts. What a farce! Talk about instituting a civil-rightssuit in the State courts of Kentucky, for instance, where the decision ofthe judge is virtually rendered before he enters the court-house, and theverdict of the jury substantially rendered before it is impan-eled . . .. "); 2 Cong. Rec. 427(statement of Rep. Stowell); 3 Cong. Rec. app.15 (statement of Rep. White).

In light of this legislative history-not to mention the contemporaneoushistory generally-it borders on the frivolous to contend, as appellantsdo, that Congress was unconcerned with violations of equal protection bythe States when it enacted the Civil Rights Acts of 1871 and 1875.27

Not only is the central premise of appellants' attempted distinction ofHarris and the Civil Rights Cases demonstrably incorrect, but, ironicallyalthough not surprisingly, an examination of the purported differences betweensection 13981 and the Civil Rights Acts of 1871 and 1875, upon which appellants'attempted distinction rests, proves beyond question the applicability ofthe analysis of Congress' Section 5 enforcement power in Harris and theCivil Rights Cases and the unconstitutionality of section 13981 under theseauthorities.

First, appellants contend that the 1871 and 1875 Acts "fail[ed] toreference any Fourteenth Amendment violation by the States" and didnot "respond[ ] to state officials' constitutional violations,"Br. of Appellant Brzonkala at 30, and they contrast this legislative historywith the legislative history of section 13981, which they contend clearlyreveals that Congress enacted section 13981 in response to state-sponsoreddiscrimination against women, see Br. of Intervenor United States at 22n.11 (distinguishing section 13981 because it "respond[s] to systemicstate equal protection violations"); Br. of Appellant Brzonkala at30 (section 13981 "has none of [the] defects" identified by theSupreme Court in the Civil Rights Cases because Congress in enacting section13981 "found a 'classic' denial of equal protection by state law enforcementsystems" and "specifically sought to remedy the equal protectionviolations resulting from the States' failings"); Reply Br. of AppellantBrzonkala at 11 (asserting that "Congress' express purpose [in enactingsection 13981], documented throughout the legislative history, includingthe Conference Report, [was] to correct historic state-sponsored commissionand tolerance of gender-based violence" (citation omitted)). As weexplain, however, contrary to appellants' breathtaking a historicism, thelegislative history of the 1871 and 1875 Acts not only evidences a concernwith conduct by the States violative of the Equal Protection Clause, itevinces a considerably more profound concern with even more open and obviousviolations of that Clause by the States than does the legislative historyof section 13981. Compare supra at 871 (1871 and 1875 Acts were enactedin response to massive and open refusal of southern States to enforce thecivil rights of blacks) with S. Rep. No. 102-197, at 39; H.R. Conf. Rep.No. 103-711, at 385, reprinted in 1994 U.S.Code Cong. & Admin. Newsat 1853 (Congress' concern in enacting section 13981 was with "subtle"types of "bias" against women), and infra Part IV.C.3.b (Congresswas primarily concerned with private conduct and public attitudes, not withstate action, whether constitutional or unconstitutional.). Indeed, appellants'assertions that Congress found a "classic" denial of equal protectionin enacting section 13981 cannot be understood except as an attempted comparisonbetween the States' treatment of women today and the southern States' treatmentof the freed slaves after the Civil War.

Next, the government contends that the Acts of 1871 and 1875, unlike section13981, imposed the same "constitutional norms" upon private individualsthat the Equal Protection Clause imposes upon the States. However, section13981 is no less "premised on the explicit assumption that purely privateconduct could violate the Fourteenth Amendment," Reply Br. of IntervenorUnited States at 3, and no less represents a "congressional attempt[]to apply the affirmative requirements of the Fourteenth Amendment to purelyprivate conduct," id., than did the Civil Rights Acts of 1871 and 1875.Compare United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264, 135 L.Ed.2d735 (1996) (gender discrimination by State violates Equal Protection Clause),with 42 U.S.C. § 13981(b) (prohibiting gender-motivated discriminationperformed by private individuals); S. Rep. No. 103-138, at 55 (section 13981is "appropriate" legislation because, inter alia, "it attacksgender-motivated crimes that threaten women's equal protection of the laws").

Finally, the government contends that the Civil Rights Acts of 1871 and1875 criminalized private conduct that was not already prohibited understate law, see, e.g., id. at 4-5 (asserting that the 1871 and 1875 Acts"prohibit[ed] . . . conduct . . . not already prohibited . . . by law,"laid "'down rules for the conduct of individuals in society toward[s]each other,'" and thus "'create[d] a code of municipal law forthe regulation of private rights'") (quoting Civil Rights Cases, 109U.S. at 11, 14, 3 S. Ct. 18), whereas section 13981 does not "prohibit. . . any conduct that is not already prohibited . . . by [state] law,"Reply Br. of Intervenor United States at 5, but instead merely creates afederal remedy that may be pursued when the States fail to enforce theirown laws, id. ("This structure reflects the wholly remedial purposeof the statute: it corrects for deficiencies in the administration of statelaw by providing a federal remedy."). In fact, however, not only dothe Civil Rights Acts of 1871 and 1875 actually appear only to have prohibitedconduct that was already prohibited by the States (and simply not prosecuted),see, e.g., supra at 871 (citing legislative history of 1871 and 1875 Actsstating that the conduct regulated by those statutes was already prohibitedunder state law but under enforced); Civil Rights Cases, 109 U.S. at 25,3 S. Ct. 18 ("Innkeepers and public carriers, by the laws of all thestates, so far as we are aware, are bound, to the extent of their facilities,to furnish proper accommodation to all unobjectionable persons who in goodfaith apply for them." (emphasis added)), but, contrary to the government'ssuggestion, section 13981 actually does criminalize a substantial rangeof conduct not prohibited under state law, see supra Part III.C (section13981 abrogates interspousal and intrafamily tort immunities, the maritalrape exception, and other defenses that might exist under state law by virtueof the relationship between the violent actor and the victim). Section 13981even creates a substantive federal criminal standard below which no Statemay deviate, see supra id. (section 13981 creates a federal cause of actionfor conduct occurring anywhere within the United States that satisfies federaldefinitions of various violent felonies).

In sum, a careful consideration of the differences between section 13981and the Civil Rights Acts asserted by the government confirms both thatHarris and the Civil Rights Cases are, in the relevant respects, controllingauthorities as to the instant case and that section 13981 is an impermissibleexercise of Congress' power under Section 5. In fact, even if appellants'reading of Harris and the Civil Rights Cases were correct (which it is not),section 13981 would be even more clearly unconstitutional than were theActs of 1871 and 1875.

Under the state action principles of Harris and the Civil Rights Cases,which, it bears repeating, have been consistently and recently reaffirmedby the Supreme Court, section 13981 is invalid, regardless of whether itsend is to remedy unconstitutional state action, for the simple reason thatit regulates purely private conduct and is not limited to individual casesin which the state has violated the plaintiff's Fourteenth Amendment rights.These are the same constitutional defects that inhered in the Civil RightsActs of 1871 and 1875.
2.
Evidently aware of the speciousness of these distinctions and, ultimately,of the fundamental premise on which they rest, appellants argue in the alternativethat Harris and the Civil Rights Cases have been tacitly overruled by, orat least qualified by analogy to, the distinct line of cases holding thatCongress may, as a "prophylactic" measure under Section 5, proscribesome conduct that does not violate Section 1 of the Fourteenth Amendment.City of Boerne, 117 S. Ct. at 2163 ("Legislation which deters or remediesconstitutional violations can fall within the sweep of Congress' enforcementpower even if in the process it prohibits conduct which is not itself unconstitutional. . . ."); Katzenbach v. Morgan, 384 U.S. 641, 648-49, 86 S. Ct. 1717,16 L.Ed.2d 828 (1966)(similar); cf. City of Rome v. United States, 446 U.S.156, 173-78, 100 S. Ct. 1548, 64 L.Ed.2d 119 (1980) (Enforcement Clauseof Fifteenth Amendment); South Carolina v. Katzenbach, 383 U.S. 301, 324-27,86 S. Ct. 803, 15 L.Ed.2d 769 (1966) (same). That is, appellants argue,just as Congress may prohibit the States from employing voting literacytests as "appropriate legislation" to "enforce" theReconstruction Amendments, even though the Supreme Court has upheld thefacial constitutionality of such tests under those Amendments, compare id.at 337, 86 S. Ct. 803 (upholding congressional ban on voting literacy tests),with Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 53-54,79 S. Ct. 985, 3 L.Ed.2d 1072 (1959) (upholding facial constitutionalityof voting literacy tests), so too may Congress regulate purely private violenceagainst women as "appropriate legislation" to "enforce"the Equal Protection Clause, even though such private violence does notviolate the Clause itself. Thus, although appellants concede, as they must,that wholly private acts of gender-motivated violence can never violatethe Equal Protection Clause, see, e.g., Collins v. Hardyman, 341 U.S. 651,658, 71 S. Ct. 937, 95 L.Ed. 1253 (1951) (stating that "the principlehas become firmly embedded in our constitutional law" that "[theFourteenth] Amendment erects no shield against merely private conduct, howeverdiscriminatory or wrongful" (internal quotation marks and footnoteomitted)), they nonetheless contend that, under the Katzenbach v. Morganand South Carolina v. Katzenbach line of cases, Congress may regulate suchprivate violence as a means of remedying the bias and discrimination againstwomen in the States' criminal justice systems, which "often deprive[] victims of crimes of violence motivated by gender of equal protectionof the laws and the redress to which they are entitled," H.R. Conf.Rep. No. 103-711, at 385, reprinted in 1994 U.S.Code Cong. & Admin.News at 1853.

Appellants are doubtless correct that Congress may, pursuant to Section5, prophylactically regulate or proscribe certain state conduct that doesnot violate Section 1 of the Fourteenth Amendment. In the prophylactic cases,however, the Court has only upheld federal statutes that prohibited stateaction; it has never upheld statutes, like section 13981, that prohibitedprivate action. None of the prophylactic cases (nor any other Supreme Courtcase) holds or suggests that Congress may employ such a rationale to reachpurely private conduct.

Recognizing as much, appellants ask us to extend these prophylactic casesto permit Congress to regulate purely private conduct, insisting that thereis "no constitutional precept" for limiting these prophylacticcases to federal legislation that proscribes state conduct. Br. of IntervenorUnited States at 24. The "constitutional precept" that limitsthe prophylactic cases to their context, however, is the Fourteenth Amendmentitself, which provides that "[n]o State shall" deny any personequal protection of the laws, and accords Congress only the power to "enforce""the provisions of this article." U.S. Const. amend. XIV, §§1, 5 (emphases added). Because the Fourteenth Amendment only prohibits actionby the States, the prophylactic rationale of cases like Katzenbach v. Morgan,South Carolina v. Katzenbach, and City of Boerne is simply inapplicablewhere, as here, Congress attempts to regulate purely private conduct, becausesuch private conduct can never violate Section 1 of the Fourteenth Amendment.

In South Carolina v. Katzenbach, for example, the Supreme Court sustaineda federal statute that categorically prohibited certain States from imposingvoting literacy requirements, even though the Court had upheld the facialconstitutionality of such literacy tests in cases such as Lassiter. Butit did so because such tests could be applied in a racially unconstitutionalmanner in many circumstances. See Lassiter, 360 U.S. at 53, 79 S. Ct. 985;South Carolina v. Katzenbach, 383 U.S. at 309, 328, 329-30, 334, 86 S. Ct.803; Oregon v. Mitchell, 400 U.S. 112, 131-34, 91 S. Ct. 260, 27 L.Ed.2d272 (1970) (opinion of Black, J.). The reasoning of the case, and of thelike prophylactic cases, therefore, is simply that Congress may categoricallyprohibit the States from enacting or enforcing certain types of constitutionallaws in order to "remedy" the significant likelihood that suchlaws will be applied unconstitutionally in a manner that could be eitherdifficult to detect in particular instances or otherwise difficult to remedyin case-by-case judicial proceedings. See, e.g., South Carolina v. Katzenbach,383 U.S. at 313-15, 327-29, 86 S. Ct. 803.

Although it makes sense for Congress, as a prophylactic measure, to proscribecategorically a type of state law that is facially constitutional in orderto prevent that law's certain and frequent unconstitutional application,cf. City of Boerne, 117 S. Ct. at 2170 ("Preventive measures prohibitingcertain types of laws may be appropriate when there is reason to believethat many of the laws affected by the congressional enactment have a significantlikelihood of being unconstitutional." (emphasis added)), it makesno sense at all to extend such reasoning to purely private conduct thatcan never violate the prohibition that "[n]o State" deny any personthe "equal protection of the laws." U.S. Const. amend. XIV, §1. Indeed, we would have to stretch the "prophylactic" rationalewell beyond recognition in order to permit Congress to regulate purely privateconduct that can never be unconstitutional, on the strength of a generalizedconcern over potentially unconstitutional conduct by the States. Such freewheelingprophylaxis would, in effect, transmogrify the actual Fourteenth Amendmentinto the Bingham Amendment, which was defeated for the very reason thatit would have permitted Congress thus to secure directly the life, liberty,property, and equality rights of all citizens. See supra Part IV.A.1; seealso City of Boerne, 117 S. Ct. at 2166 (quoting statement of RepresentativeGarfield that "we cannot, by any reasonable interpretation, give to[§ 5] . . . the force and effect of the rejected [Bingham] clause").

It is not surprising, in light of the fundamental distinction drawn in theFourteenth Amendment between action by the States and private action, thatthe Supreme Court itself has never treated the prophylactic line of casesupon which appellants rely as having sub silentio overruled Harris and theCivil Rights Cases. In fact, during the very period of time in which theSupreme Court was deciding several of the prophylactic cases, see, e.g.,South Carolina v. Katzenbach, 383 U.S. 301, 86 S. Ct. 803, 15 L.Ed.2d 769(1966); Katzenbach v. Morgan, 384 U.S. 641, 86 S. Ct. 1717, 16 L.Ed.2d 828(1966); Oregon v. Mitchell, 400 U.S. 112, 91 S. Ct. 260, 27 L.Ed.2d 272(1970), it was scrupulously adhering to, and conspicuously refusing to overrule,Harris and the Civil Rights Cases in cases such as Guest, Griffin, and Jones.See supra Part IV.A.1; see also Guest, 383 U.S. at 762 n. 1, 86 S. Ct. 1170(Harlan, J., concurring in part and dissenting in part) (asserting thatthe Section 5 issue was "deliberately not reached" by the majorityin that case). And, as we discuss above at pages [112a-115a] and note 25,the Supreme Court has consistently affirmed the state-action principlesof Harris and the Civil Rights Cases, even as recently as two years ago.See City of Boerne, 117 S. Ct. at 2166.

Rather than grapple with this basic textual, historical, and precedentialdistinction between laws regulating state action and laws regulating privateconduct, the government instead resorts to speculation and hypothesizingas to why Congress' power to regulate state action that does not necessarilyviolate the Fourteenth Amendment entails a congressional power to regulateprivate conduct that can never violate the Fourteenth Amendment.

In this regard, the government argues, first, that congressional regulationof private conduct may in this case be a less "flawed or ineffective"remedy than direct regulation of the States. Br. of Intervenor United Statesat 25. For example, the government hypothesizes that "[p]roviding acause of action against the state or state officials might create unseemlypressures on state officials to prosecute, even if the evidence of the defendant'sguilt was weak, if the victim seemed poised to sue." Id. As the SupremeCourt held in this precise context, however, "[w]hether it would nothave been a more effective protection of the rights of citizens to haveclothed Congress with plenary power over the whole subject, is not now thequestion. What we have to decide is, whether such plenary power has beenconferred upon Congress by the Fourteenth Amendment; and, in our judgment,it has not." Civil Rights Cases, 109 U.S. at 19, 3 S. Ct. 18. In anyevent, the government's argument assumes that the only alternative to section13981 is to permit a private plaintiff to bring an action for damages againstthe State or its officers and ignores the possibility that Congress couldhave simply nullified a category of state laws that discriminate againstwomen. Moreover, the government's expressed concerns of over enforcementlack credibility; it strikes us as particularly suspicious that the governmentwould, on the one hand, dramatize the need for section 13981 by trumpetingthe "massive" evidence of underenforcement of criminal laws dueto bias and discrimination against women, and, on the other hand, defendthe constitutionality of section 13981 on the grounds that a remedy againstthe very source of this "massive" state discrimination would leadto a rash of frivolous and fraudulent strike suits by women "poisedto sue." In fact, it seems to us that this line of argument appearsto all but concede that section 13981 was not designed to remedy the States'discriminatory exercise of prosecutorial discretion-a concession that putsthe lie to the government's argument that section 13981 is truly aimed atremedying state law-enforcement failures rather than at purely private actsof violence.

The government maintains, second, that in enacting section 13981, Congressmight have chosen to regulate private action, rather than the States directly,so as not to offend the sovereignty of the States. This argument, however,confuses the Fourteenth Amendment with the Commerce Clause and other similargrants of federal power. The Supreme Court has often held that it violatesprinciples of state sovereignty for the federal government to impose certainobligations directly upon the States when acting pursuant to the federalpower to regulate interstate commerce, see, e.g., Printz v. United States,521 U.S. 98, 117 S. Ct. 2365, 138 L.Ed.2d 914 (1997); New York v. UnitedStates, 505 U.S. 144, 112 S. Ct. 2408, 120 L.Ed.2d 120 (1992), and variousother federal powers, see, e.g., Kentucky v. Dennison, 24 How. 66, 16 L.Ed.717 (1860) (Extradition Clause); Collector v. Day, 11 Wall. 113, 20 L.Ed.122 (1870) (Taxation power); James v. Dravo Contracting Co., 302 U.S. 134,58 S. Ct. 208, 82 L.Ed. 155 (1937) (same); Hans v. Louisiana, 134 U.S. 1,10 S. Ct. 504, 33 L.Ed. 842 (1890) (Article III). However, the Court hasmade clear that, by its very nature, the Fourteenth Amendment is a limitationon the governments of the States, Fitzpatrick v. Bitzer, 427 U.S. 445, 453,96 S. Ct. 2666, 49 L.Ed.2d 614 (1976) (reasoning that the Fourteenth Amendment"quite clearly contemplates limitations on [the States'] authority"and "[t]he substantive provisions are by express terms directed atthe States"); Ex Parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1879)("The prohibitions of the Fourteenth Amendment are directed to theStates, and they are to a degree restrictions of State power. It is thesewhich Congress is empowered to enforce, and to enforce against State action,however put forth, whether that action be executive, legislative, or judicial."),and therefore that it "is no invasion of State sovereignty" forthe federal government to impose obligations directly upon the States whenenforcing the Fourteenth Amendment. Id. Compare Fitzpatrick, 427 U.S. at456, 96 S. Ct. 2666 (holding that state sovereign immunity may be abrogatedby federal statute enacted pursuant to Section 5 of the Fourteenth Amendment),and EEOC v. Wyoming, 460 U.S. 226, 243 n. 18, 103 S. Ct. 1054, 75 L.Ed.2d18 (1983) ("[W]hen properly exercising its power under § 5, Congressis not limited by the same Tenth Amendment constraints that circumscribethe exercise of its Commerce Clause powers."), with Seminole Tribev. Florida, 517 U.S. 44, 72, 116 S. Ct. 1114, 134 L.Ed.2d 252 (1996) (holdingthat state sovereign immunity may not be abrogated by federal statute enactedpursuant to Indian or Interstate Commerce Clauses). In fact, if anything,it may well be federal regulation of private conduct pursuant to the FourteenthAmendment that poses the greater danger to the sovereignty of the severalStates. The Fourteenth Amendment recognizes the sovereignty of the Statesto protect their citizens' rights of life, liberty, property, and equality.See, e.g., United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588 (1875)("[t]he very highest duty of the States" is to protect "[t]herights of life and personal liberty" and that "[s]overeignty,for this purpose, rests alone with the States"). A federal power underSection 5 to legislate against private interference for the protection ofthese rights would permit Congress to regulate all of "the rights whichone citizen has . . . against another," id. at 554-55, and therebyeliminate any role for the States whatsoever. See, e.g., Civil Rights Cases,109 U.S. at 14, 3 S. Ct. 18 ("[I]t is difficult to see where it isto stop. Why may not Congress, with equal show of authority, enact a codeof laws for the enforcement and vindication of all rights of life, liberty,and property? . . . [T]he implication of a power to legislate in this manner. . . is repugnant to the Tenth Amendment of the Constitution.").

In sum, the prophylactic cases such as City of Boerne, Morgan, and Katzenbachall address the question of how broadly Congress may legislate when it imposesstatutory requirements upon the States pursuant to Section 5. These casesdo not address the very distinct question of whether Congress may, underSection 5, regulate purely private conduct at all. The answer to this latterquestion has been settled for over a hundred years:
[W]here a subject is not submitted to the general legislative power of Congress,but is only submitted thereto for the purpose of rendering effective someprohibition against particular State legislation or State action in referenceto that subject, the power given is limited by its object, and any legislationby Congress in the matter must necessarily be corrective in its character,adapted to counteract and redress the operation of such prohibited Statelaws or proceedings of State officers.
Civil Rights Cases, 109 U.S. at 18, 3 S. Ct. 18. To conflate these two linesof cases, and thereby allow a complete disjunction between the constitutionalevil to be remedied and the object of Congress' legislation, would be nothingless than to recognize in the Congress itself, contrary to the Constitution,an authority to redefine the scope of the substantive provisions of theFourteenth Amendment. And as the Supreme Court observed in City of Boerne,
Congress does not enforce a constitutional right by changing what the rightis. It has been given the power "to enforce," not the power todetermine what constitutes a constitutional violation. Were it not so, whatCongress would be enforcing would no longer be, in any meaningful sense,the "provisions of [the Fourteenth Amendment]."
City of Boerne, 117 S. Ct. at 2164.

3.
Appellants contend, finally, that, even if not formally overruled, Harrisand the Civil Rights Cases have been repudiated by subsequent authoritiesand are no longer good law, a contention in support of which appellantsrely upon dicta from concurring and dissenting opinions written during the1960s, a speculative footnote from an opinion in the early 1970s, a passingobservation from the Court's decision in City of Boerne, and a law reviewarticle from 1964. Reply Br. of Appellant Brzonkala at 11 n.13 (arguingthat it "overstates the caselaw" to suggest that "those outdatedcases remain good law"); see also Br. of Appellant Brzonkala at 29,31; Br. of Intervenor United States at 22 n.11. As appellants themselvesmust no doubt recognize, none of these authorities is sufficient to drawinto question the broad state action holdings of Harris and the Civil RightsCases, much less to establish the expansive power in Congress to regulatepurely private conduct for which appellants argue.

First, although appellants, and Brzonkala in particular, place considerableweight upon language in the concurring and dissenting opinions in Guestto the effect that Section 5 permits Congress to reach purely private conduct,their reliance upon that case-even if as a last resort-is misguided. Aswe discussed above, the Court in Guest could not have been clearer thatit was not construing the outer limits of Section 5:
[W]e deal here with issues of statutory construction, not with issues ofconstitutional power, 383 U.S. at 749, 86 S. Ct. 1170 (citation omitted),[and] nothing said in this opinion goes to the question of what kinds ofother . . . legislation Congress might constitutionally enact under §5 of the Fourteenth Amendment to implement that Clause.
Guest, 383 U.S. at 755, 86 S. Ct. 1170 (emphasis added). And, as previouslydiscussed, the holding of the Court in Guest was only that the indictmentpled enough state involvement in the defendants' conspiracy-active connivanceof state officials-to allege a violation of the Equal Protection Clauseand therefore sufficient state action to support the indictment under section241.

Notwithstanding the unambiguous disclaimer by the Court that nothing itsaid should be read to comment upon the extent of Congress' Section 5 enforcementpower, appellants cite two passages from the concurring and dissenting opinionsin Guest in support of their assertion that Congress may freely regulatepurely private behavior when legislating pursuant to the Enforcement Clauseof the Fourteenth Amendment. The first such statement is that of JusticeClark, who, joined by Justices Black and Fortas, concurred in the opinionof the Court, but also wrote, inexplicably and without citation or analysisin a single conclusory sentence, that "there now can be no doubt thatthe specific language of § 5 empowers the Congress to enact laws punishingall conspiracies-with or without state action-that interfere with FourteenthAmendment rights." Id. at 762, 86 S. Ct. 1170 (Clark, J., concurring,joined by Black and Fortas, JJ.). By Justice Clark's own admission, thispronouncement was dictum, unnecessary to any legal conclusion reached byhimself and the two Justices who joined his opinion. See id. (noting that"[t]he Court carves out of its opinion the question of the power ofCongress, under § 5 of the Fourteenth Amendment, to enact legislationimplementing . . . the Fourteenth Amendment"); id. at 762, 86 S. Ct.1170 (noting that the construction of the indictment adopted by the Court"clearly avoids the question whether Congress, by appropriate legislation,has the power to punish private conspiracies that interfere with FourteenthAmendment rights"). In fact, so unnecessary was the statement thatJustice Harlan was constrained to remark in a separate opinion that
[t]he action of three of the Justices who join the Court's opinion in nonethelesscursorily pronouncing themselves on the far-reaching constitutional questionsdeliberately not reached in [the Court's opinion] seems to me, to say thevery least, extraordinary.
Id. at 762 n. 1, 86 S. Ct. 1170 (Harlan, J., concurring in part and dissentingin part).

The second statement, that by Justice Brennan in dissent, although evenmore unequivocal than Justice Clark's, is no more authority for the assertionthat Congress' power under Section 5 reaches purely private conduct. Writingfor himself, Chief Justice Warren and Justice Douglas, Justice Brennan,unlike the majority and the three Justices in concurrence, construed thelaw at issue to protect the right to equal utilization of public facilitiesfrom both state and private interference. Because of this construction ofthe statute, Justice Brennan reached the constitutional question expresslynot addressed by the majority and unnecessary to the concurrence, and stated,similarly without citation of controlling authority, that he would haveheld that the statute was constitutional despite its extension to privateconduct. Id. at 784, 86 S. Ct. 1170 (Brennan, J., concurring in part anddissenting in part, joined by Warren, C.J., and Douglas, J.). As JusticeBrennan stated:
I acknowledge that some of the decisions of this Court, most notably anaspect of the Civil Rights Cases, 109 U.S. 3, 11, 3 S. Ct. 18, 27 L.Ed.835 (1883), have declared that Congress' power under § 5 is confinedto the adoption of "appropriate legislation for correcting the effectsof prohibited State laws and State acts, and thus to render them effectuallynull, void, and innocuous." I do not accept-and a majority of the Courttoday rejects-this interpretation of § 5.
Id. at 782-83, 86 S. Ct. 1170. Justice Brennan's (and Chief Justice Warren'sand Justice Douglas') views in dissent, of course, are not binding authority,any more than are Justice Clark's (and Justice Black's and Justice Fortas')in concurrence. Significantly, the Supreme Court, only two years ago, rejectedJustice Brennan's equally sweeping companion theory of congressional powerunder Section 5. Compare City of Boerne, 117 S. Ct. at 2168 (expressly repudiatingreading of Katzenbach v. Morgan that would permit Congress to redefine thesubstantive guarantees of the Fourteenth Amendment), with Katzenbach v.Morgan, 384 U.S. at 654, 86 S. Ct. 1717 (Brennan, J.) (asserting that Congressmay be able to redefine the substantive guarantees of the Fourteenth Amendment).And, it goes without saying, the combination of these separately statedviews by the concurring and dissenting Justices no more constitutes bindingauthority overruling Harris and the Civil Rights Cases than does eitherof the separate opinions standing alone. See, e.g., City of Lakewood v.Plain Dealer Publishing Co., 486 U.S. 750, 765 n. 9, 108 S. Ct. 2138, 100L.Ed.2d 771 (1988) (noting that it is the Court's "settled jurisprudence"that "when no single rationale commands a majority, the holding ofthe Court may be viewed as that position taken by those Members who concurredin the judgment on the narrowest grounds." (internal quotation marksand citation omitted)).

The footnote statement that appears in Justice Brennan's opinion for theCourt in District of Columbia v. Carter, 409 U.S. 418, 93 S. Ct. 602, 34L.Ed.2d 613 (1973), in which the Justice states merely that "[t]hisis not to say, of course, that Congress may not proscribe purely privateconduct under § 5 of the Fourteenth Amendment," id. at 424 n.8, 93 S. Ct. 602, is likewise unavailing for appellants. As the governmentconcedes, this statement, like Justice Clark's in Guest, is the purest ofdicta, the holding of the Court having been merely that the District ofColumbia was not a "State or territory" within the meaning of42 U.S.C. § 1983 (a holding, incidentally, that has been overruledby statute).28 And the statement, of course, does not even say that Congressmay proscribe purely private conduct under Section 5. Moreover, as authorityfor this dictum, Justice Brennan cites Katzenbach v. Morgan, see id., inwhich the Court expressed the view that Congress may redefine the substantiveprovisions of the Fourteenth Amendment when legislating pursuant to Section5-a view that, as we have explained, see

supra at 101-102, has been rejected by the full Supreme Court.

Finally, in support of their contention that Harris and the Civil RightsCases are no longer good law, appellants cite the Court's recent observationin City of Boerne that
[a]lthough the specific holdings of [Harris and the Civil Rights Cases]might have been superseded or modified, see, e.g., Heart of Atlanta Motel,Inc. v. United States, 379 U.S. 241, 85 S. Ct. 348, 13 L.Ed.2d 258 (1964),United States v. Guest, 383 U.S. 745, 86 S. Ct. 1170, 16 L.Ed.2d 239 (1966),their treatment of Congress' § 5 power as corrective or preventative,not definitional, has not been questioned.
City of Boerne, 117 S. Ct. at 2166. Appellants con- tend that this passingreference draws into doubt the Court's repeated holdings that Congress maynot reach purely private conduct pursuant to Section 5.

We do not understand the Supreme Court in City of Boerne to have calledinto question in any way, in dictum or otherwise, its square holdings thatCongress may not regulate purely private conduct pursuant to Section 5 ofthe Fourteenth Amendment. This understanding of the cited passage from Cityof Boerne in particular is confirmed by the overall context of, and subsequentlanguage in, the City of Boerne opinion itself. See, e.g., id. ("[T]heseearly cases['] [including Harris and the Civil Rights Cases] . . . treatmentof Congress' § 5 power as corrective or preventive, not definitional,has not been questioned."); id. ("The power to 'legislate generallyupon' life, liberty, and property, as opposed to the 'power to provide modesof redress' against offensive state action, was 'repugnant' to the Constitution."(citation to the Civil Rights Cases omitted)).

It is obvious that the Court's reference to the superseding or modificationof the Civil Rights Cases is only to the fact that, since the Civil RightsCases, the Court has upheld, under different grants of federal power thanSection 5, federal civil rights statutes similar to the Civil Rights Actof 1875 invalidated in that case. See, e.g., Heart of Atlanta, 379 U.S.at 261, 85 S. Ct. 348 (upholding constitutionality of public accommodationsprovisions of 1964 Civil Rights Act as exercise of Congress' power underthe Commerce Clause); id. at 250-52, 85 S. Ct. 348 (discussing Civil RightsCases as "inapposite, and without precedential value in determiningthe constitutionality" of the public accommodations provisions of the1964 Civil Rights Act whose applicability was "carefully limited toenterprises having a direct and substantial relation to the interstate flowof goods and people"); see also supra Part III.A.1. In other words,although Congress today doubtless has the constitutional power to enactlegislation like the invalidated 1875 Civil Rights Act proscribing racialdiscrimination in public accommodations, it has such power not under Section5, but rather under the Commerce Clause, Spending Clause, or similar constitutionalauthority.29

Equally obvious is that the Court's citation of Guest in City of Boernerefers to the fact that Guest and similar cases have extended the conceptof state action under the Fourteenth Amendment to include nominally privateindividuals who act in "active connivance" with the State andstate officials. Guest, 383 U.S. at 756-57, 86 S. Ct. 1170. That the Courtdid not intend by this citation to affirm the views of congressional powerunder Section 5 expressed by the concurring and dissenting opinions in Guestis plain from the fact that the Court cited only the majority opinion inGuest; it did not cite either the concurring or dissenting opinions, which,as we explained above, are the only opinions in Guest that express a viewof Congress' power to reach purely private conduct under Section 5.30
4.

In summary, although appellants expressly contend that Harris and the CivilRights Cases are distinguishable, have tacitly been overruled or modified,and have been repudiated by subsequent authorities, it is apparent fromthe character of each of these arguments and the "authorities"upon which they rely that appellants really have no argument other thanthat we should ignore these decisions because they are "too old"to be controlling. To the point of histrionics, in fact, appellants incantthat Harris and the Civil Rights Cases are simply "outdated,"Reply Br. of Appellant Brzonkala at 9, "century-old," Reply Br.of Appellant Brzonkala at 10, from the "1870's [sic] and 1880's,"Br. of Intervenor United States at 22 n.11, "19th century" cases,Reply Br. of Intervenor United States at 3, and of little interest to "moderncourts," Br. of Appellant Brzonkala at 31, or those with "modern"views about the proper scope of Congress' powers. Id. Indeed, the governmentin its principal brief cites Harris and the Civil Rights Cases but once,and that citation is a parenthetical embedded within footnote. Br. of IntervenorUnited States at 22. As we are confident appellants appreciate, however,especially in light of the Supreme Court's recent explicit reliance uponboth Harris and the Civil Rights Cases in City of Boerne, we are not atliberty simply to conclude that these cases do not represent the Court'scurrent view of congressional power to regulate exclusively private conductunder Section 5. If Harris and the Civil Rights Cases are to be overruled,which the present Supreme Court apparently has no inclination to do, suchmust come from that Court itself. See, e.g., Rodriguez de Quijas v. Shearson/AmericanExpress Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L.Ed.2d 526 (1989).

C.

Given the scope of the Fourteenth Amendment's guarantees as articulatedby the Supreme Court and explained above, it is apparent in light of theSupreme Court's recent pronouncement in City of Boerne that section 13981is not "appropriate legislation" to "enforce" thoseguarantees, because section 13981 is neither sufficiently aimed at safeguardingthe Equal Protection rights guaranteed by that Amendment nor an appropriatemeans to protect those rights. In fact, as we noted, so crippling to appellants'Section 5 defense of section 13981 is the Court's intervening decision inCity of Boerne, that both appellants now defend section 13981 primarilyunder the Commerce Clause, and only secondarily under Section 5, whereasbefore the panel of this court, immediately after the Court's decision inLopez, they quite understandably defended the statute primarily as an exerciseof Congress' Section 5 authority and only secondarily as a valid exerciseof Congress' Commerce power under Article I, Section 8.

1.

According to appellants, section 13981 is a legitimate exercise of Congress'Section 5 powers because it is designed and operates to enforce the EqualProtection Clause by remedying sex discrimination in the enforcement ofstate laws. This argument turns entirely on a congressional finding in aHouse Conference Report that "bias and discrimination in the criminaljustice system[s of the States] often deprives victims of crimes of violencemotivated by gender of equal protection of the laws and the redress to whichthey are entitled" and that section 13981 is "necessary to guaranteeequal protection of the laws." H.R. Conf. Rep. No. 103-711, at 385,reprinted in 1994 U.S. Code Cong. & Admin. News at 1853; see also S.Rep. No. 103-138, at 55 (asserting that section 13981 "provides a necessaryremedy to fill the gaps and rectify the biases of existing State laws").Appellants insist that this legislative history confirms that Congress enactedsection 13981 for the purpose of enforcing the Equal Protection Clause,and that, as long as we can perceive any rational basis for Congress tohave enacted section 13981 as a means to that end, we should defer to Congress'considered judgment and uphold the statute. See, e.g., Br. of AppellantBrzonkala at 33 (criticizing district court for "substitut[ing] itsown judgment about a suitable remedy" by engaging in means-end analysisof section 13981 and for "defying its obligation to defer to Congress'construction of the problem as long as it could perceive a basis upon whichthe Congress might resolve the conflict" (emphasis added and citationomitted)); Br. of Intervenor United States at 26-27 ("Congress itselffound evidence of widespread equal protection violations . . . [and] thoughthe district court might have preferred a different remedy, the choice wasCongress's to make."); id. at 27 ("'It is not for [a court] toreview the congressional resolution of these factors. It is enough that[it] be able to perceive a basis upon which the Congress might resolve theconflict as it did.'") (quoting Katzenbach v. Morgan, 384 U.S. at 653,86 S. Ct. 1717). The underlying premise of this argument is that Congresspossesses such "exceptionally broad discretion" to legislate pursuantto Section 5, Supp. Br. of Intervenor United States at 7, and that, at leastin practice, it is for Congress to decide whether a statute is "appropriatelegislation" to "enforce" the Fourteenth Amendment.

2.

The Supreme Court has made clear, however, that we cannot simply defer tothese congressional findings or conclusions; rather, we must arrive at anindependent judgment as to the constitutionality of section 13981. As recentlyas two years ago, in City of Boerne, the Court held that the Religious FreedomRestoration Act, a statute Congress had found necessary to enforce the FreeExercise Clause, City of Boerne, 117 S. Ct. at 2162 ("Congress reliedon its Fourteenth Amendment enforcement power in enacting" the ReligiousFreedom Restoration Act), was not "appropriate legislation" to"enforce" the rights of religious exercise protected by Section1 of the Fourteenth Amendment. Congress had enacted the Religious FreedomRestoration Act in response to Employment Division v. Smith, 494 U.S. 872,110 S. Ct. 1595, 108 L.Ed.2d 876 (1990), in which the Court held that generallyapplicable and religion-neutral laws virtually never violate the Free ExerciseClause. The Religious Freedom Restoration Act created a right of religiousexercise that was more generous than that right protected by the Constitutionbecause it forbade States from imposing substantial burdens upon religiousexercise, even pursuant to generally applicable and religion-neutral laws.City of Boerne, 117 S. Ct. at 2162.

By invalidating the Religious Freedom Restoration Act, the Supreme Courtin City of Boerne reaffirmed the principle that, in order to secure a federalgovernment of limited and enumerated powers, id., congressional legislationenacted pursuant to Section 5 must be carefully scrutinized by the courtsto ensure that Congress is truly enforcing the provisions of the FourteenthAmendment, rather than redefining the substance of those provisions underthe guise of enforcement. Id. at 2164. Although acknowledging that "theline between measures that remedy or prevent unconstitutional actions andmeasures that make a substantive change in the governing law" is notalways "easy to discern," id., the Court emphasized that thisdistinction "exists and must be observed," id. (emphases added).To this end, the Court declared that a court entertaining a Section 5 challengecan uphold the statute only if there exists a "congruence and proportionalitybetween the [constitutional] injury to be prevented or remedied and themeans adopted to that end," id., or, in other words, only if the statuteis actually aimed at, and is a closely tailored means of, enforcing a provisionof Section 1. The Supreme Court then applied this "congruence and proportionality"test to the Religious Freedom Restoration Act and concluded that the statuteexceeded Congress' powers under Section 5, both because it appeared fromthe Act's legislative history that the statute was aimed at remedying thoseconstitutionally permissible burdens imposed upon religion by generallyapplicable and religion-neutral laws rather than any unconstitutional lawsthat targeted religion, id. at 2168-69, and also because the Act's "sweepingcoverage" of all state laws regardless of subject matter, level ofgovernment, and without any geographic restriction or termination mechanism,was "so out of proportion to a supposed remedial or preventive object"as to betray the non-remedial character of that statute. Id. at 2170.
City of Boerne therefore eliminates the fundamental premise of appellants'arguments, namely, that a court cannot independently evaluate Congress'decision that section 13981 is "appropriate legislation" to "enforce"the Equal Protection Clause. Although in support of their contrary premisethe parties rely heavily on some exceptionally broad pronouncements of congressionalpower appearing in Katzenbach v. Morgan, 384 U.S. 641, 86 S. Ct. 1717, 16L.Ed.2d 828 (1966), see, e.g., Br. of Appellant Brzonkala at 27; Br. ofIntervenor United States at 21, this broad language has now been repudiatedby the Supreme Court in City of Boerne, 117 S. Ct. at 2168 (explicitly renouncinglanguage in Katzenbach v. Morgan that could be construed to give Congressthe power to redefine, as opposed to simply enforce, the provisions of theFourteenth Amendment); id. (emphasizing that under a broad reading of Katzenbachv. Morgan, "it is difficult to conceive of a principle that would limitcongressional power"); id. at 2170 (characterizing Katzenbach v. Morganas a case only about "a particular type of voting qualification, onewith a long history as a notorious means to deny and abridge voting rightson racial grounds" (internal quotation marks and citation omitted)).City of Boerne similarly renders fanciful the government's suggestion thatour inquiry into section 13981's validity under Section 5 should mirrorour inquiry into the reasonableness of ordinary economic regulation in aneconomic substantive due process challenge. See Br. of Intervenor UnitedStates at 26 (quoting economic substantive due process cases including Williamsonv. Lee Optical, 348 U.S. 483, 75 S. Ct. 461, 99 L.Ed. 563 (1955)).31 Ultimately,City of Boerne forcefully affirms that Congress' power under Section 5 isnot without limits, and that those limits are not simply theoretical orspeculative, but are real and concrete, and are to be enforced by the courts,even at the expense of invalidating laudable and otherwise socially beneficiallegislation. City of Boerne, 117 S. Ct. at 2163 ("[a]s broad as thecongressional enforcement power is, it is not unlimited" (internalquotation marks and citation omitted)); id. at 2172 (although "[i]tis for Congress in the first instance to determin[e] whether and what legislationis needed to secure the guarantees of the Fourteenth Amendment," "Congress'discretion is not unlimited . . . and the courts retain the power, as theyhave since Marbury v. Madison, to determine if Congress has exceeded itsauthority under the Constitution" (emphases added)); id. ("asthe provisions of the federal statute here invoked are beyond congressionalauthority, it is this Court's precedent, not [the Religious Freedom RestorationAct], which must control"); see also Civil Rights Cases, 109 U.S. at10, 3 S. Ct. 18 ("the responsibility of an independent judgment isnow thrown upon this court; and we are bound to exercise it according tothe best lights we have").

3.

Application of the principles set forth in City of Boerne to section 13981reveals that section 13981 clearly represents an illegitimate exercise ofSection 5 authority, because it is neither aimed at violations of the EqualProtection Clause nor a closely tailored means of correcting any such violations.

(a)

First, it is clear under City of Boerne that we cannot simply defer wholesaleto Congress' purely legal conclusion that "bias and discriminationin the criminal justice system[s of the States] often deprives victims ofcrimes of violence motivated by gender of equal protection of the laws andthe redress to which they are entitled." H.R. Conf. Rep. No. 103-711,at 385, reprinted in 1994 U.S. Code Cong. & Admin. News at 1853; seealso S. Rep. No. 103-138, at 55 ("the criminal justice system is notproviding equal protection of the laws of women in the classic sense")(quoting Prof. Cass Sunstein). Indeed, as a legal conclusion, this particularfinding may be worthy of little, if any, deference. The finding is an essentiallyverbatim recitation of the congressional testimony of a single law professor,and it was added to the legislative history only after that law professortestified that such a "finding" would be instrumental in defendingthe constitutionality of section 13981 under Section 5.32 This finding thusappears to be less a considered congressional judgment as to the constitutionalityof section 13981 than legal boiler plate belatedly appended to the HouseConference Report in an effort to insulate section 13981 from judicial review.Moreover, even if this finding did represent a considered congressionaljudgment as to the constitutionality of section 13981, the soundness ofthat judgment is drawn into question by the fact that Congress also "found"-contraryto Supreme Court precedent applying the Equal Protection Clause only tostate action-that purely private acts of violence against women also "threatenwomen's equal protection of the laws." S. Rep. No. 103-138, at 55.Therefore, instead of deferring wholesale to Congress' conclusion that section13981 is aimed at, and a remedy for, violations of Equal Protection, wemust examine the legislative history and structure of section 13981 to determinethe basis of Congress' conclusion.

The legislative history of section 13981, like that of the Religious FreedomRestoration Act invalidated in City of Boerne, reveals that section 13981was not enacted as a remedy for action that violates, or may violate, theConstitution. Although this legislative history does establish that theStates enforce and apply certain laws in a manner that may ultimately preventthe victims of gender-motivated violence from obtaining vindication throughthe criminal or civil systems, the portions of the legislative history citedby appellants do not demonstrate that Congress "[was] concern[ed],"City of Boerne, 117 S. Ct. at 2169, with the type of purposeful discriminationagainst women in the enforcement of facially neutral laws that could giverise to an equal protection violation. Personnel Adm'r. v. Feeney, 442 U.S.256, 99 S. Ct. 2282, 60 L.Ed.2d 870 (1979) (holding that Equal ProtectionClause sex-discrimination challenge to facially neutral law must fail withouta showing of purposeful discrimination); cf. Washington v. Davis, 426 U.S.229, 96 S. Ct. 2040, 48 L.Ed.2d 597 (1976); Village of Arlington Heightsv. Metropolitan Hous. Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L.Ed.2d 450(1977).

Although appellants are doubtless correct that the legislative history ofthe Violence Against Women Act-a statute that includes but is not limitedto section 13981-comprises an impressive array of reports and hearings detailingthe scope of the problem of violence against women, these extensive findingsare, in the final analysis, of little value in the Section 5 inquiry. Manyof them do not relate to burdens imposed by state action, see , e.g, S.Rep. No. 102-197, at 46 ("Even if we could eradicate these legal rulesand practices tomorrow, it is unlikely that prosecution and reporting ratesfor rape would increase."); Women and Violence: Hearing Before theComm. of the Judiciary, United States Senate, 101st Cong., 2d Sess. 39,44 (1990) (noting low percentage of recoveries in civil rape cases due toimpecunious defendants). And, most importantly, even if we were to concedethat the legislative history detailed state discrimination of some sort,the record recites few, if any, specific findings that the States are engagingin unconstitutional discrimination against women in the enforcement or applicationof their criminal and civil laws. See H.R. Conf. Rep. No. 103-711, at 385-86,reprinted in 1994 U.S. Code Cong. & Admin. News at 1853-54 (discussingfindings without any mention of purposeful discrimination); S. Rep. No.103-138, at 54-55 (discussing basis for enacting section 13981 under Section5 without any mention of purposeful discrimination). Furthermore, althoughthe legislative history also discusses some specific features of state lawsthat need reform, neither appellant has cited any portion of this massivelegislative history indicating that the failure of the States to adopt suchreforms is the result of purposeful and unconstitutional discriminationagainst women. See, e.g., S. Rep. No. 101-545, at 31-33; S. Rep. No. 102-197,at 45-46. This legislative record is therefore quite unlike that beforethe Court in South Carolina v. Katzenbach, in which there was voluminousevidence that the provisions of the challenged Voting Rights Act were designedto remedy purposeful discrimination or otherwise unconstitutional deprivationsof voting rights. South Carolina v. Katzenbach, 383 U.S. at 308, 309-315,329-30, 86 S. Ct. 803 (detailing a century of racially discriminatory deprivationsof the right to vote in certain southern States). In fact, section 13981'slegislative record is almost perfectly analogous to the record found tobe deficient by the Supreme Court in City of Boerne, which recited little,if any, evidence that Congress enacted the Religious Freedom RestorationAct out of concern with purposeful or unconstitutional discrimination againstreligion by the States. Cf. City of Boerne, 117 S. Ct. at 2169 ("Congress'concern [in enacting the Religious Freedom Restoration Act] was with theincidental burdens imposed, not the object or purpose of the legislation.").

If anything, the hearings and reports on section 13981 bear out that theStates and state law enforcement officials are not purposefully discriminatingagainst women in the enforcement of laws against gender-motivated crimesof violence, but rather that they have undertaken the "most fervent,"S.Rep. No. 102-197, at 39, and "sincere efforts . . . to assist . .. victims of rape and domestic violence," S. Rep. No. 101-545, at 33,and that despite such efforts, "subtle prejudices" and "stereotypes,"S. Rep. No. 102-197, at 39, among society at large continue to prevent womenfrom filing criminal complaints, bringing suit, and otherwise obtainingvindication through the legal system. See, e.g., S. Rep. No. 101-545, at33 (attributing low prosecution and conviction rates of gender-motivatedviolent crime against women, in part, to "the press and society");S. Rep. No. 102-197, at 39-46; cf. Violent Crimes Against Women: HearingBefore the Comm. on the Judiciary, United States Senate, 103d Cong., 1stSess. 25 (1993) (noting that every State in the union has adopted legislationauthorizing protective orders for victims of domestic violence, and useof such orders has increased dramatically); Domestic Violence-Not Just AFamily Matter: Hearing Before the Subcomm. on Crime and Criminal Justiceof the Comm. on the Judiciary, House of Representatives, 103d Cong., 2dSess. 131 (1994) (results of Attorneys General survey that "[t]hroughoutthe country, Attorneys General have developed innovative projects to preventdomestic violence" and "have produced a number of excellent resourcesto prevent sexual violence in their States"); Violence Against Women-Fightingthe Fear: Hearings Before the Comm. on the Judiciary, United States Senate,103d Cong., 1st Sess. 42-43 (1993) (noting "a spirit and commitment"in the States to address problem of violent crime against women). The legislativehistory thus clearly demonstrates that the aim of section 13981 was notso much to redress violations of Equal Protection, but rather to send anational signal about the harms of violence against women. See, e.g., S.Rep. No. 103-138, at 50 (Section 13981 "has the entirely differentfunction [from state tort law] of providing a special societal judgmentthat crimes motivated by gender bias are unacceptable because they violatethe victims' civil rights.").

The structure of section 13981 and other provisions of the VAWA furtherconfirm the lack of congruence between the statute and its asserted aimof addressing purposefully unequal law enforcement by the States. Most telling,of course, is the fact that section 13981 directly regulates only privateindividuals who commit acts of violence and subjects those individuals toliability for the harms resulting from that violence. That is, the statutedoes not regulate the actions of the States or any other action taken undercolor of state law, much less remedy or correct the States' discriminatoryenforcement or application of their laws. For example, if a State consistentlyrefuses to prosecute rapists because of its gender animus against theirfemale victims, the victim's ability to obtain some small measure of justicethrough federal damages suits against the rapist would hardly eliminateor correct the State's constitutional violations. See, e.g., City of Boerne,117 S. Ct. at 2170 ("Remedial legislation under § 5 'should beadapted to the mischief and wrong which the [Fourteenth][A]mendment wasintended to provide against.'") (quoting Civil Rights Cases, 109 U.S.at 13, 3 S. Ct. 18). That section 13981 provides a remedy only against privateindividuals who commit violent crimes is significant, and perhaps dispositive,evidence that section 13981 does not truly aim at correcting unequal andunconstitutional enforcement of the laws by the States, but aims insteadonly to remedy or deter the underlying acts of violence to which that liabilityattaches.

Other features of the statute likewise belie the suggestion that section13981 is designed to remedy purposeful discrimination against women by theStates. For example, section 13981 vests the state courts with concurrentjurisdiction over section 13981 claims. 42 U.S.C. § 13981(e)(3). Thismandatory concurrent jurisdiction provision is hard to square with the assertedrationale that section 13981 was designed to remedy unconstitutional statediscrimination. If Congress were truly concerned that state courts, judges,and juries were hostile to women and purposefully discriminating againstthem in the enforcement and application of law, the more natural responsewould have been to create exclusive federal jurisdiction over section 13981claims, or, at the very least, only to allow concurrent jurisdiction instate courts that Congress concluded were not purposefully discriminatingagainst women. Section 13981 instead permits its authorized causes of actionto be brought in the very fora that the appellants must contend are hostileto the interests of women.33 Indeed, section 13981 does not merely permitclaims to be brought in state court; it may actually channel section 13981claims into state court. Most notably, for example, section 13981(e)(4)forbids federal courts entertaining claims brought under section 13981(c)from exercising supplemental jurisdiction over "divorce, alimony, equitabledistribution of marital property, or child custody decree" cases. Thus,plaintiffs who wish to bring both section 13981 claims and divorce or child-custodyactions against their spouses-a class of plaintiff very likely to have sufferedthe most egregious forms of gender-motivated domestic violence or maritalrape-will either be forced to prosecute two separate actions in differentlegal fora at greater cost, or else bring all of their claims in state court.

The conclusion that Congress did not design section 13981 as a remedy forpurposeful discrimination against women by hostile state courts is alsoborne out by features of the VAWA whose constitutionality is not at issuehere. For example, in addition to creating a private cause of action, otherprovisions of the VAWA appropriated approximately $1.6 billion in federalfunds, subject to enhancement, to help the States eliminate the causes andeffects of rape and domestic violence. 42 U.S.C. § 3796gg (law enforcement);id. § 300w-10 (education and prevention programs); id. § 10402(a)(battered women's shelters). Such a generous subsidy to the state governmentscasts serious doubt upon any suggestion that the Congress that enacted section13981 was truly concerned with purposeful and unconstitutional deprivationsof Equal Protection rights at the hands of hostile state governments.

In sum, the combined effect of the legislative history, the structure ofsection 13981, and the other provisions of VAWA is to disprove any contentionthat section 13981 was actually aimed at purposeful acts of unconstitutionalsex discrimination. Cf. City of Boerne, 117 S. Ct. at 2170 ("Preventivemeasures prohibiting certain types of laws may be appropriate when thereis reason to believe that many of the laws affected by the congressionalenactment have a significant likelihood of being unconstitutional."(emphasis added)). To the contrary, these materials establish that Congress'true concerns in enacting VAWA were to deter or remedy individual and privateacts of violence and to raise public consciousness about the seriousnessof violent crimes against women by sending a national signal of oppositionto this class of violent crime. Although these are unquestionably worthypublic policy goals, they are not sufficient in and of themselves to rendersection 13981 a legitimate exercise of Congress' power under Section 5 ofthe Fourteenth Amendment.

(b)

Even if section 13981 were intended as a means to remedy unconstitutionaldiscrimination by the States, it, much like the provisions of the ReligiousFreedom Restoration Act invalidated in City of Boerne, is so out of proportionto any possible unconstitutional state action at which it might conceivablybe aimed as to exceed congressional power to "enforce" the FourteenthAmendment. Liability under section 13981 attaches to all felonious actsof violent crime motivated by gender, 42 U.S.C. § 13981(c), and theprovision creates a statutory right and a cause of action to enforce thatright for all persons in the United States who suffer from such violentcrime. Id. § 13981(b) (conferring upon "[a]ll persons within theUnited States" the statutory right to be free from gender-based crimes);id. § 13981(c) (creating cause of action for the same). This sweepingcoverage is in no way tailored to the asserted ends of equal enforcementof the laws. For example, under section 13981, liability attaches to allgender-motivated crimes whether committed by private individuals actingalone, or by those acting under color of state law. Id. (liability extendsto a person "including a person who acts under color of" statelaw (emphasis added)). Liability also attaches to any criminal act, whetheror not the plaintiff filed a criminal complaint in the state criminal justicesystem, and without regard to whether the State failed adequately to investigateor prosecute the case because of bias or discrimination. Id. § 13981(d)(2)(A)(cause of action may lie without regard to whether the predicate acts ofviolence "have actually resulted in criminal charges, prosecution,or conviction"); id. § 13981(e)(2) ("Nothing in this sectionrequires a prior criminal complaint, prosecution, or conviction to establishthe elements of a cause of action."). Section 13981 applies equallyin all jurisdictions, whether those jurisdictions evidence a pattern ofchronic under-enforcement of laws prohibiting rape and domestic violence,S. Rep. No. 102-197, at 45-46, or whether those jurisdictions are the Statesor metropolitan areas Congress applauded for strengthening the enforcementof their rape and sexual assault laws, S. Rep. No. 101-545, at 33. Also,although Brzonkala and the government attempt to defend section 13981 asa remedy for inequalities caused by certain States that either immunizespousal rape or that have failed to adopt rape shield evidentiary rules,section 13981 does not exempt from its coverage those forty-seven Statesthat at the time of section 13981's adoption did criminalize spousal rape,S. Rep. No. 102-197, at 45 & n.50, or those States that have adoptedrape shield laws in civil cases. In addition, like the sweeping provisionsof the Religious Freedom Restoration Act invalidated in City of Boerne,117 S. Ct. at 2170, and unlike the provisions upheld in City of Rome, 446U.S. at 177, 100 S. Ct. 1548, and South Carolina v. Katzenbach, 383 U.S.at 331-32, 86 S. Ct. 803, section 13981 contains no termination date ortermination mechanism. And, finally, section 13981 is written in gender-neutralterms and would presumably create a cause of action for a male plaintiff,even though there is no evidence, or even any suggestion, that the Stateshave unconstitutionally enforced their laws that disproportionately affectmen. See S. Rep. No. 102-197, at 43 (citing state gender bias task forceconclusions that "crimes disproportionately affecting women are oftentreated less seriously than comparable crimes against men"); cf. Br.of Appellant Brzonkala at 26 n.12 ("While [section 13981] is gender-neutral,Congress recognized that women overwhelmingly are the victims of gender-motivatedviolence. . . . Consequently, this brief refers throughout to gender-motivatedviolence against women.").

In short, section 13981's "sweeping coverage," City of Boerne,117 S. Ct. at 2170, reaches all victims of gender-motivated violent felonies,all defendants who commit such crimes, all States and jurisdictions withoutregard to the adequacy of their enforcement efforts, substantive laws, orevidentiary rules and procedures, and does so without any time limit ortermination mechanism. See id. (distinguishing sweeping coverage of theReligious Freedom Restoration Act from other relatively more narrow andmeasured federal statutes that the Supreme Court had previously upheld asvalid exercises of congressional enforcement powers under the EnforcementClauses of the Fourteenth and Fifteenth Amendments); cf. South Carolinav. Katzenbach, 383 U.S. at 315, 331, 86 S. Ct. 803 (upholding provisionsof federal statute that were confined to certain regions of the countrywhere voting discrimination had been most flagrant, that affected a discreteclass of state voting laws, and that contained a five year termination mechanism);Katzenbach v. Morgan, 384 U.S. at 641, 86 S. Ct. 1717 (similar); Mitchell,400 U.S. at 112, 91 S. Ct. 260 (upholding provisions of federal statutethat prohibited States from imposing a particular type of voting qualificationwith a long history of racially discriminatory use); City of Rome, 446 U.S.at 177, 100 S. Ct. 1548 (upholding federal statute that applied to state"jurisdictions with a demonstrable history of intentional racial discrimination"deemed to "create the risk of purposeful discrimination"). Therefore,even assuming that section 13981 were truly intended or designed as a meansto remedy state discrimination, the remedy created by the section is soclearly out of proportion to any suggested unequal treatment as to be anillegitimate means of enforcement of the Equal Protection Clause. Cf. Cityof Boerne, 117 S. Ct. at 2171 ("The substantial costs [the ReligiousFreedom Restoration Act] exacts, both in practical terms of imposing a heavylitigation burden on the States and in terms of curtailing their traditionalgeneral regulatory power, far exceed any pattern or practice of unconstitutionalconduct. . . .").

(c)

The Supreme Court concluded its Section 5 analysis in City of Boerne byobserving that, if it were to uphold the Religious Freedom Restoration Actas an appropriate exercise of Section 5, such would "contradict[] vitalprinciples necessary to maintain separation of powers and the federal balance,"id. at 2172, namely, that the federal government not be accorded a generalpolice power but rather be confined to its limited and enumerated powers,id. at 2162 ("Under our Constitution, the Federal Government is oneof enumerated powers."); id. (citing The Federalist No. 45). Or, asJustice Kennedy explained in the analogous context of construing 42 U.S.C.§ 1985(3), "essential considerations of federalism are at stakehere. The federal balance is a fragile one, and a false step in interpreting§ 1985(3) risks making a whole catalog of ordinary State crimes a concurrentviolation of a single congressional statute. . . ." Bray v. AlexandriaWomen's Health Clinic, 506 U.S. 263, 287, 113 S. Ct. 753, 122 L.Ed.2d 34(1993) (Kennedy, J., concurring) (emphases added). We are convinced thatwe would disrupt the "vital" "federal balance," andessentially confer upon Congress a general police power, were we to holdthat section 13981 is a legitimate exercise of congressional remedial powerunder Section 5.

If the congressional findings cited here suffice to render section 13981a legitimate enforcement of the Fourteenth Amendment, then in effect thefederal government could constitutionally regulate every aspect of society,even including those areas traditionally thought to be reserved exclusivelyto the several States, such as general criminal and domestic relations law.See supra Part III.C. For example, if section 13981 were an appropriatemeans to remedy gender-motivated bias in the States, then the federal governmentcould similarly adopt a general federal criminal code to replicate or preemptthe existing criminal laws of the fifty States in order to root out anysuch bias. Presumably, the very same or similar legislative record of section13981 could support an analogous finding that all state criminal laws areinfused with gender bias. See, e.g., S. Rep. No. 102-197, at 44 ("genderbias permeates the court system and . . . women are most often its victims"(internal quotation omitted)). And many of the same state gender-bias taskforces that were cited in section 13981's legislative history also appearto find gender bias in state domestic-relations law. Compare Br. of AppelleesMorrison and Crawford at 33 n.12 (citing various state task force conclusionsof gender bias in domestic relations law), with S. Rep. No. 102-197, at43 n. 40, and S. Rep. No. 103-138, at 49 n.52 (citing these and other taskforces' conclusions on gender bias in state criminal systems). Thus, ifsection 13981 were constitutional under Section 5, then presumably the federalgovernment could adopt and enforce a federal divorce and domestic relationscode. And federal preemption, or even occupation, of other substantive fieldsof law, such as tort and contract law, would soon follow. See, e.g., Br.of Appellees Morrison and Crawford at 33-34 (citing various law review articlesand studies in support of argument that gender bias pervades tort law, contractlaw, and several other substantive areas of State law). Because the logicof appellants' argument would not be limitable to the Equal Protection Clause,the federal government presumably would even be permitted to create a nationalburglary statute in order to protect from private interference the FourteenthAmendment's guarantee that "[n]o State" "deprive any personof life, liberty, or property, without due process of law." Indeed,we think it no overstatement that such an interpretation of Section 5 would,in a way "repugnant" to the Constitution, City of Boerne, 117S. Ct. at 2166 (quoting the Civil Rights Cases, 109 U.S. at 15, 3 S. Ct.18), permit Congress, upon but a generalized finding of bias, to occupythe entire field of state law and to legislate directly upon all of therights of life, liberty, and property of all the citizens of the UnitedStates.

We cannot conclude, therefore, that section 13981 is a valid exercise ofCongress' authority under Section 5 of the Fourteenth Amendment.

V.

At the end of the day, it is apparent that, for objectives unquestionablylaudable, Congress has sought, through its powers to enforce the Constitution'sprohibitions against state deprivations of equal protection and to regulatecommerce among the several States, to direct private individuals in theiractivities wholly local and noneconomic. It has sought to reach conductquintessentially within the exclusive purview of the States through legislationthat neither conditions the federal intervention upon proof of misconductimputable to a State or upon a nexus to interstate commerce, nor is tailoredso as to address activity closely connected with constitutional failuresof the States or with interstate commerce. This the Congress may not do,even in pursuit of the most noble of causes, lest be ceded to the Legislaturea plenary power over every aspect of human affairs-no matter how private,no matter how local, no matter how remote from commerce.

Appellants have labored to defend such an unprecedented power in the Congressfirst, in the immediate aftermath of United States v. Lopez, as a validexercise of Congress' indisputably broad Fourteenth Amendment power underSection 5, then, after City of Boerne v. Flores, as a valid exercise ofCongress' equally broad power under Article I, section 8, and, finally,counter currently, as legislation that should usher in a new era not ofcongressional restraint, but of congressional expansion into the affairsof the States and of the People. Ultimately, however, certain of section13981's constitutionality but uncertain of the reason, and recognizing thatwe are without authority to deviate from bind- ing Supreme Court precedent,they have been left with little more than the sincerest of assertions thatsection 13981 is laudable social policy. While this is undoubtedly true-noone favoring violence against women-the desirability of section 13981 is,as it must be under a Constitution that separates the powers one from theother, a matter that has been placed beyond our cognizance by the Constitutionwe interpret.

We are not unaware that in invalidating section 13981 today, we invalidatea provision of a statute denominated the "Violence Against Women Act."No less for judges than for politicians is the temptation to affirm anystatute so decorously titled. We live in a time when the lines between lawand politics have been purposefully blurred to serve the ends of the latter.And, when we, as courts, have not participated in this most perniciouslymachiavellian of enterprises ourselves, we have acquiesced in it by others,allowing opinions of law to be dismissed as but pronouncements of personalagreement or disagreement. The judicial decision making contemplated bythe Constitution, however, unlike at least the politics of the moment, emphaticallyis not a function of labels. If it were, the Supreme Court assuredly wouldnot have struck down the "Gun-Free School Zones Act," the "ReligiousFreedom Restoration Act," the "Civil Rights Act of 1871,"or the "Civil Rights Act of 1875." And if it ever becomes such,we will have ceased to be a society of law, and all the codification offreedom in the world will be to little avail.

Accordingly, the Congress having exceeded its constitutional authority inenacting Subtitle C of the Violence Against Women Act, the judgment of thedistrict court dismissing plaintiff-appellant Brzonkala's claims under 42U.S.C. § 13981 is affirmed.

AFFIRMED.

1 This statement of facts is drawn almost verbatim from the statement offacts set forth by the United States and adopted, for purposes of this appeal,by appellees Morrison and Crawford. Br. of Intervenor United States at 16-17;Br. of Appellees at 1 (adopting statement of facts set forth by the UnitedStates).
2 Appellant Brzonkala also contends that the district court improperly dismissedher claims against Virginia Polytechnic Institute under Title IX of theEducation Amendments of 1972, 20 U.S.C. §§ 1681-1688, in whichshe assertedly alleged both disparate treatment and hostile environmentcauses of action. We do not question the district court's conclusion thatBrzonkala failed to state a claim alleging disparate treatment, and we thusaffirm that holding and the reasoning upon which it was based. With respectto the hostile environment claim, the Supreme Court of the United Stateshas recently agreed to decide whether student on student sexual harassmentis actionable at all under Title IX. See Davis v. Monroe County Bd. of Educ.,120 F.3d 1390 (11th Cir. 1997), cert. granted, -- U.S. --, 119 S. Ct. 29,141 L.Ed.2d 789, 66 U.S.L.W. 3387 (1998). Because the Court's decision inDavis will almost certainly prove informative of whether Brzonkala has sufficientlypled such a cause of action, if not determinative of that asserted causeof action as a matter of law, we vacate the district court's dismissal ofthe hostile environment cause of action and remand with instructions tothe district court to hold this claim in abeyance pending the Supreme Court'sdisposition of Davis.
3 It is much less clear whether Brzonkala has properly stated a section13981 claim against appellee Crawford, as Crawford is not alleged to havemade statements like Morrison's. By concluding that Brzonkala has stateda claim against Morrison, however, we are forced to confront the questionof whether section 13981 exceeds the scope of Congress' constitutional powers.Our resolution of that question, which we discuss below at Parts III-IV,renders unnecessary any decision as to whether Brzonkala has also stateda claim against Crawford.
4 As the Court reaffirmed in Lopez, Congress may, under the Commerce Clause,"regulate the use of the channels of interstate commerce" and"regulate and protect the instrumentalities of interstate commerce,or persons and things in interstate commerce, even though the threat maycome only from intrastate activities," in addition to regulating activitiesthat substantially affect interstate commerce. Lopez, 514 U.S. at 558-59,115 S. Ct. 1624. It is both clear and undisputed by the parties that §13981, like the GFSZA,
is not a regulation of the use of the channels of interstate commerce, noris it an attempt to prohibit the interstate transportation of a commoditythrough the channels of commerce; nor can it be justified as a regulationby which Congress has sought to protect an instrumentality of interstatecommerce or a thing in interstate commerce.
Id. at 559, 115 S. Ct. 1624. Thus, § 13981 can be sustained under theCommerce Clause only if it constitutes "a regulation of an activitythat substantially affects interstate commerce." Id.
5 Although appellants-in six briefs-confine their tepid acknowledgment ofthis distinction to a single sentence, see infra note 19 and accompanyingtext, it is impossible to ignore either the distinction drawn by the Courtbetween regulations of economic and noneconomic activities or the criticalimportance of this distinction to the Court's analysis. See, e.g., Lopez,514 U.S. at 559, 115 S. Ct. 1624 (majority) ( "[W]e have upheld a widevariety of congressional Acts regulating intrastate economic activity wherewe have concluded that the activity substantially affected interstate commerce.")(emphasis added); id. at 560, 115 S. Ct. 1624 ("Where economic activitysubstantially affects interstate commerce, legislation regulating that activitywill be sustained.") (emphasis added); id. at 561, 115 S. Ct. 1624("[GFSZA] is not an essential part of a larger regulation of economicactivity, in which the regulatory scheme could be undercut unless the intrastateactivity were regulated.") (emphasis added); id. at 565-66, 115 S.Ct. 1624 ("We do not doubt that Congress has authority under the CommerceClause to regulate numerous commercial activities that substantially affectinterstate commerce and also affect the educational process.") (emphasisadded); id. at 567, 115 S. Ct. 1624 ("The possession of a gun in alocal school zone is in no sense an economic activity that might, throughrepetition elsewhere, substantially affect any sort of interstate commerce.")(emphasis added); id. at 574, 115 S. Ct. 1624 (Kennedy, J., concurring)("Stare decisis operates with great force in counseling us not to callin question the essential principles now in place respecting the congressionalpower to regulate transactions of a commercial nature. . . . Congress canregulate in the commercial sphere on the assumption that we have a singlemarket and a unified purpose to build a stable national economy.")(emphases added); id. at 577, 115 S. Ct. 1624 ("Were the Federal Governmentto 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 wouldblur and political responsibility would become illusory.") (emphasisadded); id. at 583, 115 S. Ct. 1624 (GFSZA regulates "an activity beyondthe realm of commerce in the ordinary and usual sense of that term.")(emphasis added); id. (GFSZA could not be sustained "[a]bsent a strongerconnection or identification with commercial concerns that are central tothe Commerce Clause") (emphasis added); id. at 595, 115 S. Ct. 1624(Thomas, J., concurring) (distinguishing regulation of "intrastatecommerce that substantially affects interstate and foreign commerce"from regulation of "all activities that affect interstate commerce");id. at 601 n.9, 115 S. Ct. 1624 ("[C]ommercial character is not onlya natural but an inevitable ground of Commerce Clause distinction.")(emphasis added; internal quotation marks and citation omitted).
This said, the dissent actually does completely ignore this distinction.In fact, so consciously does the dissent turn a blind eye to the Court'srepeated distinction between regulations of economic and noneconomic activitiesthat in its discursive treatment of Lopez the dissent does not as much asonce-not once-cite to or quote even one of the score of references to thisdistinction in the Lopez opinions, except a single time inadvertently, seeinfra at 927 ("The representative effectiveness of state and federalgovernments would also be impaired if 'the Federal Government [were] totake over the regulation of entire areas of traditional state concern, areashaving nothing to do with the regulation of commercial activities.'")(quoting Lopez, 514 U.S. at 577, 115 S. Ct. 1624 (Kennedy, J., concurring))(emphasisadded). Only once (and then only in a quote from another case) does thedissent quote even the word "economic" from Lopez-a word thatappears repeatedly throughout the several opinions in that case.
Cases subsequent to Lopez, of course, reaffirm that congressional powerunder the substantially affects test is limited primarily to the regulationof economic or commercial activities. See, e.g., United States v. Robertson,514 U.S. 669, 671, 115 S. Ct. 1732, 131 L.Ed.2d 714 (1995) (per curiam)("The 'affecting commerce' test was developed in our jurisprudenceto define the extent of Congress's power over purely intra state commercialactivities that nonetheless have substantial inter state effects.")(second emphasis added).
6 Notwithstanding this seemingly unequivocal holding by the Court in Lopez,we do, nevertheless, proceed to address the possibility that Congress' powermight well extend to regulating some noneconomic activities as well. Seeinfra Part III.C. To the extent that we do consider such a possibility,that new rule would contemplate a congressional power under the CommerceClause broader, rather than narrower, than that acknowledged by the Courtin Lopez. Thus, in the end, the dissent's rhetorical ploy of charging uswith creating a "new rule" rebounds upon itself with a vengeance.
7 The Court's reaffirmation of Wickard in Lopez also distinguishes the presentcase from United States v. Leshuk, 65 F.3d 1105 (4th Cir. 1995), in whichwe upheld the federal prohibition on the manufacture of marijuana, evenas applied to manufacture for personal use. Like the production of home-grownwheat, the manufacture of marijuana for personal use is an economic activityin a general sense. Further, such manufacture is prohibited pursuant toa comprehensive statutory scheme bearing on all aspects of the illegal-drugtrade, which is assuredly both commercial and interstate. Cf. id. at 1112("In contrast to the firearm possession prohibited in the Gun Act,the intrastate drug activities regulated in the Drug Act are clearly tiedto interstate commerce."). Thus, like the regulation of home-grownwheat, the prohibition of home- grown marijuana is "an essential partof a larger regulation of economic activity, in which the regulatory schemecould be undercut unless the intrastate activity were regulated." Lopez,514 U.S. at 561, 115 S. Ct. 1624.
8 We reject Brzonkala's contention that the link here is more direct thanin Lopez because section 13981 regulates actual violence rather than thepossession of guns, which could, but would not necessarily, lead to violence.See Br. of Appellant Brzonkala at 38. As is apparent from their arguments,however, many of the economic effects of gender-motivated violence uponwhich the appellants rely arise, as in Lopez, not from actual violence,but rather from the fear of such violence. And, unlike in Lopez, in whichthe potential violence threatened education, a specific enterprise withclear links to the economy, see Lopez, 514 U.S. at 624, 115 S. Ct. 1624(Breyer, J., dissenting) ("[T]he immediacy of the connection betweeneducation and the national economic well-being is documented by scholarsand accepted by society at large in a way and to a degree that may not holdtrue for other social institutions. It must surely be the rare case, then,that a statute strikes at conduct that (when considered in the abstract)seems so removed from commerce, but which (practically speaking) has sosignificant an impact upon commerce."), gender-motivated violence affectsno such specific enterprise. Thus, the manner in which any given act ofgender-motivated violence affects the economy will depend on the specificcircumstances of its victim. It is clear that here, as in Lopez, the relationshipbetween the regulated conduct and interstate commerce is attenuated, andthat any slight difference in the number of "steps" in the relationshipis both artificial and insignificant.
9 Brzonkala selectively quotes from our opinion in Hoffman to support herargument that Congress may regulate violence motivated by gender animus,despite its noneconomic character, solely because of its ultimate economiceffects, see Supp. Br. of Appellant Brzonkala at 4. That case, however,does not support her position. Compare id. (stating that this court hasupheld regulation of an activity that "was 'closely connected with,and ha[d] a direct and profound effect on, the interstate commercial market.'")(quoting Hoffman, 126 F.3d at 586-87), with Hoffman, 126 F.3d at 587 (explainingthat regulated activity "is closely connected with, and has a directand profound effect on, the interstate commercial market in reproductivehealth care services " (emphasis added)). It is plain that we did notuphold the statute in Hoffman because the regulated conduct affected thenational economy, but rather because it directly affected a specific interstatemarket and was also "closely and directly connected with an economicactivity." Id.
10 Appellants attempt to distinguish the GFSZA struck down in Lopez fromsection 13981 on the grounds that the former overrode state laws that wouldotherwise regulate guns in school zones. Appellants' characterization ofthe GFSZA, however, rests primarily on the misleading attribution to theSupreme Court of an opinion voiced only by President Bush, which the Courtquotes in passing at the end of a lengthy footnote. Compare Br. of IntervenorUnited States at 31-32 ("In the Court's view, the Gun Free School ZonesAct 'inappropriately overr[ode] legitimate state firearms laws with a newand unnecessary Federal law.' 115 S. Ct. at 1631 n. 3 (internal quotationmarks and citation omitted).") (emphasis added), Supp. Br. of IntervenorUnited States at 5 (same), Reply Br. of Intervenor United States at 14 (similar),and id. at 15 (similar), with Lopez, 514 U.S. at 561 n. 3, 115 S. Ct. 1624("[S]ee also Statement of President George Bush on Signing the CrimeControl Act of 1990, 26 Weekly Comp. of Pres. Doc. 1944, 1945 (Nov. 29,1990) ('Most egregiously, section[922(q) ] inappropriately overrides legitimatestate firearms laws with a new and unnecessary Federal law. . . . .'")(emphasis added)). Furthermore, appellants' characterization of the GFSZAoverlooks the actual character of that statute which, like section 13981,carefully preserved state laws by, inter alia, exempting from its prohibitionpossession of a gun licensed by a State or locality, 18 U.S.C. § 922(q)(2)(B)(ii),and preserving the rights of States and localities to establish gun-freeschool zones, id. § 922(q)(4); see also id. § 927 (expressingdesire not to pre-empt state laws).
11 In fact, section 13981 appears to have been specifically intended toenhance the penalty for the conduct that it regulates. See S. Rep. No. 103-138,at 50 (1993) ("Title III [section 13981] singles out for enhancementbias-inspired conduct. . . .").
12 See also Chief Justice William H. Rehnquist, Remarks at the Annual Meetingof the American Law Institute (May 11, 1998) (listing the Violence AgainstWomen Act as one of "the more notable examples" of "a seriesof laws passed by Congress that have expanded the jurisdiction of the federalcourts" and that have raised the "prospect that our system willlook more and more like the French government, where even the most minordetails are ordained by the national government in Paris"); see generallyChief Justice William H. Rehnquist, The 1998 Year-End Report of the FederalJudiciary (January 1999) ("The trend to federalize crimes that traditionallyhave been handled in state courts not only is taxing the Judiciary's resourcesand affecting its budget needs, but it also threatens to change entirelythe nature of our federal system.").
13 See, e.g., Supp. Br. of Intervenor United States at 3 (contending thatbecause Congress failed to identify nexus between regulated conduct andinterstate commerce or provide "findings of any sort," "theeffect of gun possession on interstate commerce could be posited only hypothetically,"and "it would be necessary to 'pile inference upon inference' to sustainthe statute") (quoting Lopez, 514 U.S. at 567, 115 S. Ct. 1624); ReplyBr. of Intervenor United States at 12 ("The Lopez Court found it couldsustain the Gun Free School Zones Act only by 'pil[ing] inference on inference,'Lopez, 115 S. Ct. at 1634, and explicitly noted the absence of any legislativefindings that would have made the inferential process unnecessary. Id. at1631."); Br. of Intervenor United States at 19 (similar); cf. Br. ofAppellant Brzonkala at 38 (similar).
14 See, e.g., Reply Br. of Intervenor United States at 12 n. 8 ("Thepoint for the Lopez majority . . . was that its inferential task was notlightened by the presence of legislative findings such as those that arepresent here. Defendant's insistence that the outcome in Lopez would havebeen identical regardless of the legislative record before the Court isflatly at odds with the Court's declaration and its reasoning."); cf.id. at 12 (noting "critical" nature of findings); id. at 11 ("Contraryto defendants' contention here, legislative findings are of key significance.")
15 See also infra at 923 ("Where Congress has supported a statute withan explicitly articulated rationale asserting its constitutionality, [ ]invalidation . . . [is] a direct repudiation of Congress's full authority.");id. at 933 ("No one doubts the validity of any of these principles[of federalism and enumerated powers]. The critical question, however, iswho decides how they are to be upheld. The Constitution itself providesa clear and specific answer to that question. It allocates the fundamentalpower of government-the power of legislation-to Congress."); id. at923 ("The statute itself articulates the existence of a congressionaljudgment of constitutionality, while findings articulate the content ofthat judgment. We defer to the former . . . and we grant an additional measureof deference to the latter. . . ."); id. at 916-17 ("Given Congress'sclear finding that gender-based violence has a substantial effect on interstatecommerce, the compelling evidence in the legislative record supporting thatfinding, and the fact that the challenged statute in no way interferes withstate action on matters of traditional state concern, it seems to me thata court can only uphold Subtitle C."); id. at 918-19 (criticizing majorityfor "fly speck[ing] congressional judgments"); id. at 919-20 (criticizingmajority for claiming that gender-based violence lacks a meaningful connectionto economic activities, given that "Congress expressly found that gender-basedviolence does affect specific economic activities. . . ."); id. at923 ("[N]othing in Lopez suggests that when Congress has considereda matter and made a rational finding of constitutionality-let alone an explicitfinding based on a massive congressional record, as in this case-a courtshould not defer to that finding.").
16 Although appellants cite this latter finding, they evince an understandable-thoughbarely excusable-reluctance to quote it in its entirety. Compare Br. ofIntervenor United States at 8 ("See also S. Rep. No. 103-138 at 54('[g]ender-based crimes and the fear of gender-based crimes restrict[] movement,reduce[] emploment opportunities, increase[] health expenditures, and reduce[]consumer spending')."), and id. at 30 (same), with Supp. Br. of IntervenorUnited States at 1-2 (" '[G]ender-based crimes and the fear of gender-basedcrimes restrict[] movement, reduce[] employment opportunities, increase[]health expenditures, and reduce[] consumer spending, all of which affectinterstate commerce and the national economy.' S. Rep. No. 103-138, at 54(1993).").
17 Appellants assert that because section 13981 regulates not all violentcrime-or even all violent crime against women-but only such crime arisingfrom gender animus, it does not impermissibly intrude upon traditional areasof state authority. To the extent this argument rests on the assumptionthat gender-motivated crime constitutes a relatively small subset of allviolent crime against women, it is in marked tension with appellants' relianceupon congressional findings of the total economic costs of all violenceagainst women to support section 13981. See supra Part III.D.1.a. And ifappellants believe that gender-motivated violence constitutes a relativelylarge subset of violence against women, it is difficult to understand howthe statutory limitation upon which appellants rely substantially lessensthe impact of section 13981 on the balance of state and federal authority.
In reliance upon inapposite precedent, however, appellants maintain thatcrime motivated by animus uniquely implicates federal interests and fallsoutside traditional areas of state concern. Even were this precedent relevantto the scope of congressional authority under the Commerce Clause, the rationaleof the cases upon which appellants rely is clearly limited to crime thatis itself tied to a specific constitutional violation or is purposefullyaimed at depriving its victims of their constitutional rights. Compare Griffinv. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 29 L.Ed.2d 338 (1971),with United States v. Guest, 383 U.S. 745, 784, 86 S. Ct. 1170, 16 L.Ed.2d239 (1966) (Brennan, J., dissenting), and Bray v. Alexandria Women's HealthClinic, 506 U.S. 263, 275, 113 S. Ct. 753, 122 L.Ed.2d 34 (1993).
In any event, appellants' argument is inconsistent with Lopez itself. For,in that case, the Court found that the GFSZA interfered with state authorityover violent crime and education, even though it did not regulate all violentcrime or all matters relating to education, but only the possession of firearmsin school zones. And it did so despite the argument that firearm regulationrepresented an area in which the federal government has "accumulatedinstitutional expertise." Lopez, 514 U.S. at 563, 115 S. Ct. 1624.Clearly, under Lopez, a statute regulating only a subset of a traditionalarea of state concern still implicates the balance of state and federalauthority, and it does so even when that subset involves conduct similarto that regulated by the federal government in other contexts.
18 Although appellants cite this passage as authority for the propositionthat Lopez reaffirmed the Supreme Court's "previous half century ofCommerce Clause jurisprudence," they tellingly do not quote the passage,but instead provide only the following parenthetical description: "recognizingthe breadth of the Commerce Clause power under its precedents and simply'declin[ing] here to proceed any further.'" Br. of Intervenor UnitedStates at 27 & n.13. This description, of course, as the textual quotationshows, misrepresents the import of the Supreme Court's pronouncement.
19 Almost by way of afterthought, the government, in the final paragraphof its principal brief, and without citation, concedes that the fact "[t]hata statute does not address economic activity directly may, as in Lopez,suggest that the connection between federal legislation and interstate commerceis impermissibly attenuated." Br. of Intervenor United States at 33-34.Among the six briefs filed by Brzonkala and the United States before thiscourt, this lone sentence constitutes the sum total of the appellants' attentionto the critical distinction Lopez draws between regulations of economicand noneconomic activities.
20 At times, in fact, appellants come dangerously close to affirmativelymisrepresenting the holding and analysis of Lopez. Compare Br. of IntervenorUnited States at 34 ("The Court in Lopez did not, however, hold thatCongress was limited to the direct regulation of economic activity underthe Commerce Clause. Instead, the Court reiterated that '"[e]ven if[an] activity be local and though it may not be regarded as commerce, itmay still, whatever its nature, be reached by Congress if it exerts a substantialeconomic effect on interstate commerce. . . ."' Lopez, 115 S. Ct. at1628 (quoting Wickard v. Filburn, 317 U.S. at 125, 63 S. Ct. 82)."(alterations and omissions in Br.)); id. at 27-28 (similar); and Br. ofAppellant Brzonkala at 36 n.2 ("In Wickard v. Filburn, which Lopezdid not purport to reverse, the Court held that even if an activity is notcommercial, it may be reached by Commerce Clause if it exerts a 'substantialeconomic effect.' 317 U.S. 111, 125, 63 S. Ct. 82, 87 L.Ed. 122 (1942) (emphasisadded)."), with Lopez, 514 U.S. at 560-61, 115 S. Ct. 1624 (characterizingWickard as a case involving economic activity and holding that because theGFSZA "had nothing to do with 'commerce' or any sort of economic enterprise,"it could not be sustained under the authority or reasoning of cases suchas Wickard that had upheld regulations of economic activities); id. at 559-60,115 S. Ct. 1624 (listing Wickard among "examples" of cases upholdingregulations of economic activities); and supra Part III.B.1. Compare alsoBr. of Intervenor United States at 27 & n.2 (stating that Lopez merelyreaffirmed the "previous half century of Commerce Clause jurisprudence";citing for this proposition Lopez, 115 S. Ct. at 1637 (Kennedy, J., concurring),and characterizing this passage with the following parenthetical description:"Commerce Clause precedents 'are not called into question by our decisiontoday'"), with Lopez, 514 U.S. at 573-74, 115 S. Ct. at 1637 (Kennedy,J., concurring) ("Later examples of the exercise of federal power wherecommercial transactions were the subject of the regulation include Heartof Atlanta Motel, Inc. v. United States, Katzenbach v. McClung, and Perezv. United States. These and like authorities are within the fair ambit ofthe Court's practical conception of commercial regulation and are not calledin question by our decision today." (citations omitted; emphases added));cf. supra Part III.A & nn.5, 18, 19.
21 See, e.g., Br. of Appellant Brzonkala at 35 n.29 (asserting, withoutanalysis, that "[t]he Lopez decision's recognition that a law's constitutionalityultimately is a judicial decision does not disturb the deferential rationalbasis review the Court endorsed"); id. at 35 ("Lopez leaves undisturbedthe well-established principle that Commerce Clause legislation will beupheld as long as Congress had a rational basis for concluding that theregulated activity sufficiently affected interstate commerce."); id.("Lopez does not disturb the standard Commerce Clause rational basisreview."); Br. of Intervenor United States at 19 ("[T]he rationalbasis standard [was] reaffirmed in Lopez."); Supp. Br. of IntervenorUnited States at 1 (same); cf. Br. of Intervenor United States at 28 (referringto "rational basis" review); Reply Br. of Appellant Brzonkalaat 14 (same); Reply Br. of Intervenor United States at 13 (same); Supp.Br. of Appellant Brzonkala at 1-2 (same); Supp. Br. of Intervenor UnitedStates at 4, 6 (same); id. at 2 (similar).
22 See, e.g., Lopez, 514 U.S. at 557, 115 S. Ct. 1624 ("In Jones &Laughlin Steel, the Court warned that the scope of the interstate commercepower 'must be considered in the light of our dual system of governmentand may not be extended so as to embrace effects upon interstate commerceso indirect and remote that to embrace them, in view of our complex society,would effectually obliterate the distinction between what is national andwhat is local and create a completely centralized government.'"); id.at 564, 115 S. Ct. 1624 ("Under the theories that the Government presentsin support of § 922(q), it is difficult to perceive any limitationon federal power, even in areas such as criminal law enforcement or educationwhere States historically have been sovereign."); id. ("Thus,if we were to accept the Government's arguments, we are hard pressed toposit any activity by an individual that Congress is without power to regulate.");id. at 567, 115 S. Ct. 1624 ("To uphold the Government's contentionshere, we would have to pile inference upon inference in a manner that wouldbid fair to convert congressional authority under the Commerce Clause toa general police power of the sort retained by the States." (emphasisadded)).
23 Indeed, the substitution of "violent crime" or "crime"for "gender-based violence" in even the individualized statementsregarding section 13981 relied upon by the dissent and the government, noneof which was by Congress as an institution and few of which were even madeby congressional members or staff, confirms the boundless power that wouldreside in the Congress were the section to be sustained upon such statements:
Violent crime and the fear of violent crimes restricts movement, reducesemployment opportunities, increases health expenditures, and reduces consumerspending, all of which affect interstate commerce and the national economy.
Infra at 912-13.
[E]stimates suggest that we spend [billions] a year on health care, criminaljustice, and other social costs of violence . . . [and lose billions] annuallydue to absenteeism in the workplace.
Id. at 913-14.
Violent crime bars its [targets] from full participation in the nationaleconomy.
Id. at 913.
Even the fear of violent crime affects the economy because it deters [menand] women from taking jobs in certain areas or at certain hours that posea significant risk of such violence.
Br. of Intervenor United States at 7.
[Men and] women often refuse higher paying night jobs in service/retailindustries because of the fear of attack.
Infra at 914.
Fear of crime even deters [men and] women from using public transportationand thus acts as a barrier to mobility, particularly for those . . . whohave no alternative to public transportation because of economic constraints.
Br. of Intervenor United States at 8 (internal quotation omitted).
The threat of violence has made many [men and] women understandably afraidto walk our streets or use public transportation.
Id.
But the costs do not end there: violent crime has a devastating social andeconomic effect on the family and the community.
Infra at 914 (internal quotation omitted).
24 At issue in Guest was whether certain indictments stated chargeable offensesunder 18 U.S.C. § 241, a statute that prohibits conspiracies to deprivepersons of constitutional rights. The disputed indictments in Guest allegedthat certain white citizens conspired for the purpose of interfering withvarious constitutional rights of black citizens, including their rightsto equal utilization of public facilities and to interstate travel. TheSupreme Court reversed the lower court's dismissal of the indictments forfailure to state a chargeable offense. With respect to the counts in theindictment alleging that the defendants interfered with the victims' rightto "equal utilization, without discrimination upon the basis of race,of public facilities," Guest, 383 U.S. at 753, 86 S. Ct. 1170, theCourt concluded, as a matter of statutory construction, that such a rightwas protected by § 241 to the extent that it was protected by the EqualProtection Clause. Id. at 754, 86 S. Ct. 1170. It then held that the indictmentstated a chargeable offense because it alleged sufficient state involvementin the conspiracy-"active connivance" between the private defendantsand state officials-for the conspiracy to fall within the prohibitions ofthe Equal Protection Clause under state action principles. Id. at 756-57,86 S. Ct. 1170 ("[T]he allegation is broad enough to cover a chargeof active connivance by agents of the State in the making of the 'falsereports,' or other conduct amounting to official discrimination.").Therefore, the Court in Guest at most extended the Fourteenth Amendment'sstate action concept to include those who act in cooperation and activeconnivance with the State. Cf. United States v. Price, 383 U.S. 787, 86S. Ct. 1152, 16 L.Ed.2d 267 (1966) (holding that involvement of a sheriff,deputy sheriff, and a patrolman in lynching conspiracy was sufficient torender the conspiracy under color of state law).
Because the Court construed this count to allege state interference witha right protected by the Equal Protection Clause, it did not address thequestion whether Congress could, under Section 5, proscribe private conductwithout any nexus to state action. The Court similarly did not considerwhether Congress could regulate wholly private conduct in the course ofreinstating the other counts in the indictment that alleged a private interferencewith the victims' constitutional right to travel. In reinstating these counts,the Court emphasized that "the constitutional right of interstate travelis a right secured against interference from any source whatever, whethergovernmental or private," and it "reiterate[d] that the rightto travel freely from State to State finds constitutional protection thatis quite independent of the Fourteenth Amendment." Guest, 383 U.S.at760 n. 17, 86 S. Ct. 1170 (emphasis added).
25 See, e.g., Romer v. Evans, 517 U.S. 620, 628, 116 S. Ct. 1620, 134 L.Ed.2d855 (1996) (citing the Civil Rights Cases for the proposition that "itwas settled early that the Fourteenth Amendment did not give Congress ageneral power to prohibit discrimination in public accommodations");Lugar, 457 U.S. at 936, 102 S. Ct. 2744 (citing Civil Rights Cases and statingthat "[c]areful adherence to the 'state action' requirement preservesan area of individual freedom by limiting the reach of federal law and federaljudicial power" (emphasis added)); Blum, 457 U.S. at 1002, 102 S. Ct.2777 (citing Civil Rights Cases as origin of the "firmly embedded"doctrine that Section 1 only protects against state action (internal quotationsomitted)); Moose Lodge, 407 U.S. at 172, 92 S. Ct. 1965 (citing Civil RightsCases as "set[ting] forth the essential dichotomy" between stateand private action); Adickes v. S.H. Kress & Co., 398 U.S. 144, 147n.2, 90 S. Ct. 1598, 26 L.Ed.2d 142 (1970) (declining to reconsider theSection 5 holding of the Civil Rights Cases ); Collins v. Hardyman, 341U.S. 651, 657-58, 71 S. Ct. 937, 95 L.Ed. 1253 (1951) (noting that Harriswas "in harmony with . . . other important decisions during that period[of Cruikshank and the Civil Rights Cases] by a Court, every member of whichhad been appointed by President Lincoln, Grant, Hayes, Garfield or Arthur-allindoctrinated in the cause which produced the Fourteenth Amendment, butconvinced that it was not to be used to centralize power so as to upsetthe federal system" (footnote omitted)); United States v. Williams,341 U.S. 70, 71 S. Ct. 581, 95 L.Ed. 758 (1951) (opinion of Frankfurter,J.) ("[W]e have consistently held that the category of rights whichCongress may constitutionally protect from interference by private personsexcludes those rights which the Constitution merely guarantees from interferenceby a State."), overruled by United States v. Price, 383 U.S. 787, 798,86 S. Ct. 1152, 16 L.Ed.2d 267 (1966) (overruling Williams constructionof 18 U.S.C. § 241 and holding that statute extends to conspiraciesto interfere with Fourteenth Amendment where conspirators acted under colorof state law); United States v. Powell, 212 U.S. 564, 564-65, 29 S. Ct.690, 53 L.Ed. 653 (1909) (per curiam) (holding that individual right toa fair trial in state court cannot be constitutionally vindicated by a federalprosecution of private persons); Ex Parte Virginia, 100 U.S. 339, 346, 25L.Ed. 676 (1879) ("The prohibitions of the Fourteenth Amendment aredirected to the States, and they are to a degree restrictions of State power.It is these which Congress is empowered to enforce, and to enforce againstState action, however put forth, whether that action be executive, legislative,or judicial." (emphasis added)); id. at 347 (legislation pursuant tosection 5 "must act upon persons, not upon the abstract thing denominateda State, but upon the persons who are the agents of the State in the denialof the rights which were intended to be secured" (emphasis added));United States v. Cruikshank, 92 U.S. 542, 555, 23 L.Ed. 588 (1875) ("Theonly obligation resting upon the United States [under the Fourteenth Amendment]is to see that the States do not deny the right [to equal protection ofthe laws]. This the amendment guarantees, but no more. The power of thenational government is limited to the enforcement of this guaranty."(emphasis added)); cf. James v. Bowman, 190 U.S. 127, 139, 23 S. Ct. 678,47 L.Ed. 979 (1903) ("These authorities show that a statute which purportsto punish purely individual action cannot be sustained as an appropriateexercise of the power conferred by the Fifteenth Amendment upon Congressto prevent action by the State through some one or more of its officialrepresenta- tives. . . .").
26 See, e.g., Guest, 383 U.S. at 757, 86 S. Ct. 1170 (upholding action underprecursor to section 241 against private conspiracy to interfere with constitutionalright to travel); Ex Parte Yarbrough, 110 U.S. 651, 665, 4 S. Ct. 152, 28L.Ed. 274 (1884) (upholding private action under precursor to section 241against private conspiracy to interfere with right to vote in federal elections);Griffin v. Breckenridge, 403 U.S. 88, 105, 91 S. Ct. 1790, 29 L.Ed.2d 338(1971) (upholding action brought under 42 U.S.C. § 1985(3) againstprivate individuals as an exercise of congressional power to enforce theThirteenth Amendment); United Bhd. of Carpenters and Joiners v. Scott, 463U.S. 825, 833, 103 S. Ct. 3352, 77 L.Ed.2d 1049 (1983) (refusing to extend42 U.S.C. § 1985(3) to private conspiracies "aimed at a right[e.g., free speech] that is by definition a right only against state interference");id. (reciting in dictum that even if § 1985(3) did cover private interferencewith rights not to associate with a labor union, such would be constitutionalunder the Commerce Clause); Jones v. Alfred H. Mayer Co., 392 U.S. 409,439, 88 S. Ct. 2186, 20 L.Ed.2d 1189 (1968) (upholding action under 42 U.S.C.§ 1982 against private individuals as an exercise of congressionalpower to enforce the Thirteenth Amendment); Runyon v. McCrary, 427 U.S.160, 179, 96 S. Ct. 2586, 49 L.Ed.2d 415 (1976) (same for 42 U.S.C. §1981); Heart of Atlanta, 379 U.S. at 249-50, 85 S. Ct. 348 (noting that"Congress based the [Civil Rights] Act [of 1964] on § 5 and theEqual Protection Clause of the Fourteenth Amendment as well as its powerto regulate interstate commerce," but concluding that "since thecommerce power is sufficient for our decision here we have considered italone").
27 Appellants note that the Supreme Court did not cite this widely knownlegislative history in its opinions in Harris and the Civil Rights Cases.However, if not as a matter of common sense, then from the Supreme Court'sstatement that it had "carefully considered" "the views andarguments of distinguished senators, advanced while the [1875] law was underconsideration, claiming authority to pass it by virtue of that amendment,"Civil Rights Cases, 109 U.S. at 10, 3 S. Ct. 18, it is apparent that theSupreme Court was fully aware of this history.
28 Acknowledging this statement from Carter to be dictum, the governmentnonetheless urges us "not [to] lightly dismiss[ ]" such dictumbecause it is the "declaration" of a "20th century"Supreme Court opinion. Reply Br. of Intervenor United States at 6. The implicationof the government's argument, of course, is that square holdings from the"19th century"-i.e., those of Harris and the Civil Rights Cases-maybe "lightly dismissed" by a court of appeals. Of course, thisis incorrect.
29 Of course, the government can find no solace in these later cases, aswe have already considered and rejected its sole attempt to find an alternativeconstitutional basis for section 13981. See supra Part III.
30 In the effort to convince us that neither Harris nor the Civil RightsCases are any longer sound precedents, the United States and appellant Brzonkalaalso direct us to a law-review article by Laurent B. Frantz, CongressionalPower To Enforce the Fourteenth Amendment Against Private Acts, 73 YaleL.J. 1353 (1964). Indeed, in its original brief, the United States citesthis journal article twice as often as it cites the Supreme Court's decisionin the Civil Rights Cases. See Br. of Intervenor United States at 22 n.11;id. at 23 n. 12 (citing Frantz article, and, in particular, citing the pageof that article in which Frantz sets forth his own "subtle" and"complex" reinterpretation of Harris and the Civil Rights Cases);see also Br. of Appellant Brzonkala at 33 n.24 (citing Frantz article).The author of that article does argue that Congress may in some cases regulateprivate conduct when acting under Section 5, but his conclusion is that"[c]ongressional legislation which impinges directly on the conductof private individuals and which operates uniformly regardless of the roleplayed by the state is unconstitutional." See Frantz, supra, at 1359(emphasis in original). Under this interpretation of the Fourteenth Amendment,section 13981 would yet be unconstitutional because it operates uniformlyin all States, without regard to the role played by those States in thealleged discriminatory violence. See supra Part IV.A.2.
31 The government characterizes as "inexplicable" any suggestionthat cases like Williamson v. Lee Optical are inapposite in the Section5 context because Williamson and other similar cases "were quoted andapplied by Morgan itself in addressing Congress's § 5 powers."Reply Br. of Intervenor United States at 9. In Katzenbach v. Morgan, however,the Supreme Court cited Williamson only to respond to the distinct argumentthat the challenged statute at issue in Katzenbach v. Morgan violated individualliberties by "invidious[ly] discriminati[ng]" between American-flagand non-American-flag schools. Katzenbach v. Morgan, 384 U.S. at 656-57,86 S. Ct. 1717. It did not, contrary to the government's representation,cite Williamson "in addressing Congress's § 5 powers." ReplyBr. of Intervenor United States at 9. In any event, and as our above discussionmakes clear, even if the Supreme Court had so cited Williamson in Katzenbachv. Morgan, the Supreme Court more recently, in City of Boerne, repudiatedany language in Katzenbach v. Morgan that could be interpreted to mean thatCongress' Section 5 power is as broad as a State's power to enact ordinaryeconomic regulations of the type upheld in Williamson.
32 Compare 137 Cong. Rec. S579, S608 (1991) (text of S. 15, 102d Cong. §301(a) (1991)) (earlier version of section 13981 cause of action for damages,which recited no findings of state bias or discrimination in the enforcementor application of state laws), and Crimes of Violence Motivated by Gender:Hearing Before the Subcomm. on Civil and Const. Rights of the House Comm.on the Judiciary, 103d Cong., 1st Sess. 52(1993) (statement of Prof. Sunstein)(testimony recommending that Congress amend S.15 as follows: "In particular,Title III [section 13981] might include provisions that . . . emphasizethe existence of current bias or discrimination in the criminal justicesystem-bias or discrimination that, Congress believes, in many cases depriveswomen subject to violent crime of the equal protection of the laws."),with H.R. Conf. Rep. No.103-711, at 385, reprinted in 1994 U.S. Code Cong.& Admin. News at 1853 (finding that "bias and discrimination inthe criminal justice system often deprives victims of crimes of violencemotivated by gender of equal protection of the laws and the redress to whichthey are entitled"). Interestingly, the earlier version of section13981, included within S. 15, appears to ground the constitutionality ofsection 13981's damages cause of action not in the Equal Protection Clauseat all, but rather in the Privileges and Immunities Clause of the FourteenthAmendment. 137 Cong. Rec. at S608 (Title III, § 301(b)) ("Allpersons within the United States shall have the same rights, privilegesand immunities in every State as is enjoyed by all other persons to be freefrom crimes of violence motivated by the victim's gender"). Presumably,the Privileges and Immunities rationale was abandoned by Congress becauseit was without merit. See, e.g., Slaughter-House Cases, 16 Wall. 36, 74-80,21 L.Ed. 394 (1872).
33 More evidence of the nonremedial character of section 13981 is the factthat there is virtually nothing in the record cited by the parties to provethat federal courts, federal judges, or federal juries are significantlyless susceptible to the subtle prejudices and stereotypes that often preventwomen from obtaining recovery in civil actions against the perpetratorsof gender-motivated violence than are their counterparts in the state judicialsystems. See also Br. of Appellees Morrison and Crawford at 34 n.13 (citingscholarly commentary and studies that the federal court systems are proneto the identical types of gender-bias that exist in state court systems).

WILKINSON, Chief Judge, concurring:

As this century draws to a close, it seems appropriate to examine the courseof its jurisprudence and the place of this case within it. The decisionbefore us is an especially difficult one because it pits the obligationto preserve the values of our federal system against the imperative of judicialrestraint.

I agree that section 13981 of the Violence Against Women Act exceeds theauthority of Congress under both the Commerce Clause and Section 5 of theFourteenth Amendment. Our ruling reaffirms the fundamental principle thatour national government is one of enumerated-and therefore limited-powers.See, e.g., United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L.Ed.2d626 (1995).

Nonetheless, it is a grave judicial act to nullify a product of the democraticprocess. The hard question is whether our decision constitutes an indefensibleexample of contemporary judicial activism or a legitimate exercise in constitutionalinterpretation. Respect for the institutions of self-government requiresus, in all but the rarest of cases, to defer to the actions of legislativebodies. In particular, "[t]he history of the judicial struggle to interpretthe Commerce Clause . . . counsels great restraint before [we] determine[] that the Clause is insufficient to support an exercise of the nationalpower." Lopez, 514 U.S. at 568, 115 S. Ct. 1624 (Kennedy, J., concurring).I would add to that cautionary tale not only the judiciary's parallel experiencewith economic due process but also the activist legacy of the Warren andearly Burger Courts. By considering today's decision in light of history'soften cold assessment of the product of those prior eras, we may ascertainwhether we forsake to our peril the high ground of judicial restraint.

I.

A.

Judicial activism in this century falls into three general stages. The first,beginning roughly with the decision in Lochner v. New York, 198 U.S. 45,25 S. Ct. 539, 49 L.Ed. 937 (1905), and continuing through the early NewDeal, has come to symbolize judicial activism taken to excess. The Lochnerdecision remains the foremost reproach to the activist impulse in federaljudges. And the Lochner era is still widely disparaged for its mobilizationof personal judicial preference in opposition to state and federal socialwelfare legislation. In a series of decisions, the Supreme Court pressedthe doctrine of "liberty of contract" against state and federallaws protecting union members, see Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441 (1915); Adair v. United States, 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436 (1908), and laws prescribing minimum wages for womenand children, see Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 56S. Ct. 918, 80 L.Ed. 1347 (1936); Adkins v. Children's Hospital, 261 U.S.525, 43 S. Ct. 394, 67 L.Ed. 785 (1923). Even though the Court during thesame period upheld several maximum-hours provisions, see Bunting v. Oregon,243 U.S. 426, 37 S. Ct. 435, 61 L.Ed. 830 (1917); Muller v. Oregon, 208U.S. 412, 28 S. Ct. 324, 52 L.Ed. 551 (1908); Holden v. Hardy, 169 U.S.366, 18 S. Ct. 383, 42 L.Ed. 780 (1898), as well as other labor legislation,see, e.g., Chicago, B. & Q. R.R. Co. v. McGuire, 219 U.S. 549, 31 S.Ct. 259, 55 L.Ed. 328 (1911), contemporary critics assailed the Court forindulging its "judicial sense of what was good for the business community"and ignoring the plight of the common citizen. Robert H. Jackson, The Strugglefor Judicial Supremacy 164 (1941); see also Morehead, 298 U.S. at 619, 56S. Ct. 918 (Hughes, C.J., dissenting). The irreconcilability of such casesas Lochner and Adkins on one side and Holden and Bunting on the other fosteredthe impression of a Court that was picking and choosing without principle,on occasion voiding legislative acts "simply because they [were] passedto carry out economic views which the Court believe[d] to be unwise or unsound,"Adkins, 261 U.S. at 562, 43 S. Ct. 394 (Taft, C.J., dissenting).

Then, as now, the scope of the commerce power was a major battleground.The New Deal Court used the Commerce Clause to rein in the expanding scopeof federal economic legislation. These cases protected the authority ofthe states vis-a-vis the federal government, rather than restricting governmentaction entirely. Nonetheless, doctrinal inconsistency again lent fuel tothose who charged the Supreme Court with favoring the corporate class. CompareHammer v. Dagenhart, 247 U.S. 251, 38 S. Ct. 529, 62 L.Ed. 1101 (1918) (Congressmay not bar goods made with child labor from the channels of interstatecommerce), with, e.g., Hoke v. United States, 227 U.S. 308, 33 S. Ct. 281,57 L.Ed. 523 (1913) (Congress may keep channels of commerce free of transportationfor prostitution). These results suggested to many that the Court's line-drawingwas not truly constitutional, but that it simply reflected opposition to"[t]he fundamental consideration . . . that industry should take careof its human wastage." Railroad Retirement Bd. v. Alton R.R. Co., 295U.S. 330, 384, 55 S. Ct. 758, 79 L.Ed. 1468 (1935) (Hughes, C.J., dissenting).

Moreover, the shadows cast by such aggressive Commerce Clause decisionsas Carter v. Carter Coal Co., 298 U.S. 238, 56 S. Ct. 855, 80 L.Ed. 1160(1936) (striking the Bituminous Coal Conservation Act of 1935), A.L.A. SchechterPoultry Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L.Ed. 1570(1935) (striking the National Industrial Recovery Act as applied), and AltonRailroad Co., 295 U.S. 330, 55 S. Ct. 758, 79 L.Ed. 1468 (striking the RailroadRetirement Act), obscured earlier cases in which the Court upheld expansivefederal regulation, see , e.g., Texas & N.O.R.R. Co. v. Brotherhoodof Ry. & S.S. Clerks, 281 U.S. 548, 50 S. Ct. 427, 74 L.Ed. 1034 (1930)(Railway Labor Act); Stafford v. Wallace, 258 U.S. 495, 42 S. Ct. 397, 66L.Ed. 735 (1922) (Packers and Stockyards Act); Southern Ry. Co. v. UnitedStates, 222 U.S. 20, 32 S. Ct. 2, 56 L.Ed. 72 (1911) (Safety Appliance Act).Narrow interpretations of the taxing and spending powers in United Statesv. Butler, 297 U.S. 1, 56 S. Ct. 312, 80 L.Ed. 477 (1936) (striking provisionsof the Agricultural Adjustment Act), and the Child Labor Tax Case, 259 U.S.20, 42 S. Ct. 449, 66 L.Ed. 817 (1922) (striking the Child Labor Tax Law),solidified the image of an obstructionist Supreme Court, determined to impedelegislative efforts to reverse the era's economic dysfunction and to easethe human suffering that it had wrought.
The century's first era of judicial activism proved a painful experiencefor the courts, as well as for the nation. Battered by court packing proposalsand chastened by a wholesale change in personnel, the Court eventually abandonedthe business of reviewing state and federal regulation of economic activity.See, e.g., Wickard v. Filburn, 317 U.S. 111, 129, 63 S. Ct. 82, 87 L.Ed.122 (1942); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct. 578,81 L.Ed. 703 (1937). Indeed, the reaction to the Court's early excesseswas so strong that many supposed for a time that limits on the commercepower had become non-existent. See, e.g., Gerald Gunther & KathleenM. Sullivan, Constitutional Law 198 (13th ed. 1997) ("In the wake ofWickard . . . it was difficult indeed to articulate any limits on the reachof the commerce power."). And the Lochner specter of result-orientedactivism still haunts the Court's debates today. See Lopez, 514 U.S. at608, 115 S. Ct. 1624 (Souter, J., dissenting) ("[I]t seems fair toask whether the step taken by the Court today does anything but portenda return to the untenable jurisprudence from which the Court extricateditself almost 60 years ago.").

B.

The century's second era of judicial activism was more social than economicin nature. The post-war civil rights movement pursued a strategy of litigationto correct the abuses blacks suffered in every aspect of their civic experience.Seeking to emulate the movement's success, more and more citizens turnedto the courts to vindicate a wide variety of individual liberties. Unlikethe first era, which sought at least in part to protect the states againstthe encroachments of the federal legislature, the cases of this second erauniformly restricted the states' authority. The Court accomplished thisin two ways. In some cases it incorporated the Bill of Rights against thestates through the Fourteenth Amendment's Due Process Clause. See, e.g.,Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L.Ed.2d 653 (1964). In otherinstances it formulated new rights from the Bill of Rights, see, e.g., Escobedov. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L.Ed.2d 977 (1964), and theFourteenth Amendment, see, e.g., Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705,35 L.Ed.2d 147 (1973).

The verdict on this second activist era has been more mixed than the verdicton the first. Four of the most widely accepted decisions of the era imposedbroad restrictions on the states. See Reynolds v. Sims, 377 U.S. 533, 84S. Ct. 1362, 12 L.Ed.2d 506 (1964) (requiring states to apportion theirlegislatures according to population); New York Times Co. v. Sullivan, 376U.S. 254, 84 S. Ct. 710, 11 L.Ed.2d 686 (1964) (requiring states to recognizemalice as an element of libel actions); Gideon v. Wainwright, 372 U.S. 335,83 S. Ct. 792, 9 L.Ed.2d 799 (1963) (requiring states to furnish legal representationin criminal cases); Brown v. Board of Educ., 347 U.S. 483, 74 S. Ct. 686,98 L.Ed. 873 (1954) (requiring states to end public school segregation).Unlike the most notable decisions of the first activist era, these fouropinions have become judicial landmarks, and their position in the pantheonof our jurisprudence is secure.
In many contexts, however, the institutional stresses brought on by theera's most expansive and entangling decisions forced the Court to reversecourse. Some decisions overextended the institutional capacity of the federalcourts, installing judges as long-term supervisors of basic state functions.After approving district courts' broad equitable discretion to devise wide-rangingschool desegregation plans, see Swann v. Charlotte-Mecklenburg Bd. of Educ.,402 U.S. 1, 91 S. Ct. 1267, 28 L.Ed.2d 554 (1971), the Court constraineddistrict judges from extending those plans beyond the school district inwhich the constitutional violation occurred, see Milliken v. Bradley, 418U.S. 717, 94 S. Ct. 3112, 41 L.Ed.2d 1069 (1974). And the rule that stateprisoners could avail themselves of federal habeas corpus even if they failedto observe state procedures, see Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822,9 L.Ed.2d 837 (1963), gave way to the requirement that defendants show "causeand prejudice" for procedural default, see Wainwright v. Sykes, 433U.S. 72, 97 S. Ct. 2497, 53 L.Ed.2d 594 (1977). The Court likewise had tocabin its efforts to examine state administrative procedures case-by-case,see Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L.Ed.2d 287 (1970),reducing such inquiry to only those cases involving "liberty"and "property" interests, see Board of Regents of State Collegesv. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L.Ed.2d 548 (1972). In the midstof this era the Justices themselves engaged in the ad hoc review of statecourt obscenity rulings, see, e.g., Redrup v. New York, 386 U.S. 767, 87S. Ct. 1414, 18 L.Ed.2d 515 (1967) (per curiam), until they finally castoff "the role of an unreviewable board of censorship for the 50 States"by making obscenity more a jury question, Miller v. California, 413 U.S.15, 22 n. 3, 93 S. Ct. 2607, 37 L.Ed.2d 419 (1973). Other constitutionalrulings were simply ridden too far, and the Court eventually had to reinthem in. For example, the Court declined to apply the testimonial bar ofMiranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966),to impeaching evidence, see Harris v. New York, 401 U.S. 222, 91 S. Ct.643, 28 L.Ed.2d 1 (1971).

The Warren and early Burger Courts focused on finding new substantive rightsin the Constitution and downplayed that document's structural mandates.Al-though many of its individual decisions were overdue and salutary, whenthe era is considered as a whole, the states were relegated to a second-classconstitutional status. As states themselves began to respect the civil rightsof all their citizens, however, the justification for additional restrictionsbegan to wear thin. And because "the preservation of the States, andthe maintenance of their governments, are as much within the design andcare of the Constitution as the preservation of the Union," Gregoryv. Ashcroft, 501 U.S. 452, 457, 111 S. Ct. 2395, 115 L.Ed.2d 410 (1991)(quoting Texas v. White, 74 U.S. (7 Wall.) 700, 725, 19 L.Ed. 227 (1868)),this second era of activism presaged-and indeed guaranteed-a cyclical correction.

C.

This century's third and final era of judicial activism probably began withNew York v. United States, 505 U.S. 144, 112 S. Ct. 2408, 120 L.Ed.2d 120(1992), in which the Supreme Court held that the "take title"provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985impermissibly coerced the states into passing legislation. Since that time,the Court has issued a spate of decisions striking federal enactments thatexceeded Congress' authority at the expense of the states. See Printz v.United States, 521 U.S. 98, 117 S. Ct. 2365, 138 L.Ed.2d 914 (1997) (strikingthe interim background check provision of the Brady Handgun Violence PreventionAct); City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L.Ed.2d624 (1997) (striking the Religious Freedom Restoration Act of 1993); Lopez,514 U.S. 549, 115 S. Ct. 1624 (1995) (striking the Gun Free School ZonesAct of 1990); see also Seminole Tribe v. Florida, 517 U.S. 44, 116 S. Ct.1114, 134 L.Ed.2d 252 (1996) (invalidating Congress' attempt under the IndianCommerce Clause to abrogate the states' Eleventh Amendment immunity).

The common thread of contemporary activism is an interest in reviving thestructural guarantees of dual sovereignty. For instance, Congress may notstretch the commerce power so far as to regulate noncommercial areas oftraditional state concern-activity that "has nothing to do with 'commerce'or any sort of economic enterprise, however broadly one might define thoseterms." Lopez, 514 U.S. at 561, 115 S. Ct. 1624. Nor may Congress "defineits own powers by alter- ing the Fourteenth Amendment's meaning." Cityof Boerne, 117 S. Ct. at 2168. The Court has preserved the states' immunityin federal court, defending their right not to be sued without consent.See Seminole Tribe, 517 U.S. 44, 116 S. Ct. 1114. It has enforced the "etiquetteof federalism," Lopez, 514 U.S. at 583, 115 S. Ct. 1624 (Kennedy, J.,concurring), barring Congress from "commandee[ring] the legislativeprocesses of the States," New York, 505 U.S. at 161, 112 S. Ct. 2408(internal quotation marks omitted), and forbidding the national governmentfrom "impress[ing] the state executive into its service" by "command[ing]the States' officers . . . to administer or enforce a federal regulatoryprogram." Printz, 117 S. Ct. at 2371, 2384.

Taken as a whole, the decisions preserve Congress as an institution of broadbut enumerated powers, and the states as entities having residual sovereignrights.

II.

As abbreviated as the preceding discussion is, it will suffice to pose thecritical question. Will the current era of judicial scrutiny stand the testsof time and public acceptance any better than the prior eras have? The facialsimilarities between the present jurisprudence and the New Deal era underscorethe dilemma. Yet upon closer scrutiny, the current wave of judicial decisionsbears little relation to those which crested early in this century. If oneremains attentive to the pitfalls of the past, the present jurisprudenceholds the promise to be an enduring and constructive one, for its aims andmeans differ significantly from those of prior eras.

A.

As an initial matter, the outcomes of the current era have not consistentlyfavored a particular constituency. In the first era of activism, courtswere widely perceived as choosing sides with business interests in the politicaldebate over the expansion of federal and state regulatory power and theabandonment of laissez-faire. During this time, all of the Supreme Court'scases limiting the scope of the enumerated powers led to results that werefavorable to the commercial class. See, e.g., Carter, 298 U.S. 238, 56 S.Ct. 855 (1936) (voiding pro-labor provision); Hammer, 247 U.S. 251, 38 S.Ct. 529 (1918) (voiding child labor provision). Moreover, the barricadeof substantive due process thwarted social and economic advancements draftednot just by Congress, but by state governments as well. See, e.g., Morehead,298 U.S. 587, 56 S. Ct. 918 (1936) (rejecting state minimum wage law); Adkins,261 U.S. 525, 43 S. Ct. 394 (1923) (rejecting federal minimum wage law);Lochner, 198 U.S. 45, 25 S. Ct. 539 (1905) (rejecting state maximum hourslaw). Given this drumbeat of "pro-business" outcomes, criticswere able to assemble a solid case that the court was promoting-in a politicalfashion-the interests of business at the expense of the interests of workingmenand women.

By contrast, the cases of the present era cannot be seen as single-mindedlypromoting the interests of a particular constituency. Unlike the cases ofthe first era, the decisions of the third era display no pattern of favoritism.In fact, the results are unfavorable to a variety of interests. See NewYork, 505 U.S. 144, 112 S. Ct. 2408 (1992) (striking down radioactive wastedisposal law); Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995) (striking downcriminal law penalizing gun possession); Seminole Tribe, 517 U.S. 44, 116S. Ct. 1114 (1996) (barring suits against unconsenting states authorizedby Indian Gaming Regulatory Act); Printz, 117 S. Ct. 2365 (1997) (strikingdown law requiring local law enforcement officials to administer federalregulatory scheme); City of Boerne, 117 S. Ct. 2157 (1997) (striking downact aiming to protect the free exercise of religion). As a matter of oxen,the gored are determined by infringements upon our federal system, not byjudicial disdain for enacted policies.
Additionally, the cases of the current era arise out of disparate factualcontexts, not simply out of repetitious clashes between business and laborinterests. The first era's repeated parade of business-labor disputes solidifiedthe perception that the Court was politically hostile to social welfarelegislation. To be sure, the current cases present the customary array ofamicus briefs advancing the positions of a variety of interest groups. Butthe identity and alignment of those groups varies, foreclosing the possibilitythat the judiciary will be seen as politically choosing sides in a singleepic struggle. In the present period, the preservation of federalism values-notthe maintenance of laissez faire-is the binding principle. Interestingly,even the states have occasionally aligned themselves on different sidesof federalism issues, sometimes taking positions in derogation of theirown sovereign power. See New York, 505 U.S. at 154, 112 S. Ct. 2408 (notingthat three states intervened as defendants in support of the take-titleprovision); Brief of 13 States, Amici Curiae, in Support of Respondent,Printz, 117 S. Ct. at 2365 (1997) (No. 95-1478) (supporting enlistment oflocal officials to conduct background checks).

B.

The nature of textual interpretation in the third era also differs fromthe prior two. The courts of the first era gave an exceedingly narrow definitionto the term "commerce," unduly restricting congressional power.By distinguishing commerce from manufacturing, production, and mining, see,e.g., Carter, 298 U.S. 238, 56 S. Ct. 855 (1936) (mining is not commerce);United States v. E.C. Knight Co., 156 U.S. 1, 15 S. Ct. 249, 39 L.Ed. 325(1895) (manufacturing is not commerce), and by separating economic activitiesthat directly affect interstate commerce from those that have only indirecteffects, see, e.g., Schechter Poultry, 295 U.S. at 544-50, 55 S. Ct. 837(wage and hour regulations lack direct relation to interstate commerce),the Supreme Court removed even the plainly economic activities of mines,manufacturing plants, railroads, and merchants from the sphere of regulable"commerce."

The current era of judicial scrutiny does not face this same fundamentaltextual problem. Courts are not motivated by a desire that a particularsubstantive meaning be given to a constitutional term such as commerce,but instead by the duty to find that some meaning must exist. The questionnow is not what the proper allocation of economic regulatory power oughtto be, but whether the states will have any subjects of social welfare tocall their own. The collapse of the first era's artificial distinctionsdictates the third era's interpretive caution. The cases of the third erahave not sought to characterize business and economic activity as somethingother than commerce. Modern courts instead have taken a minimalist approach,withholding only the narrowest of subjects from the ambit of the "commerce"power.

Identifying the connection between commerce and the traditional, noneconomicstate concerns addressed by section 13981, however, would require the courtsto "pile inference upon inference," in the end sanctioning a commercepower without any limitations. Lopez, 514 U.S. at 567, 115 S. Ct. 1624.Although the appellants have presented able arguments in support of section13981, the Commerce Clause must contain some limitations if its languageis not to be completely excised from the Constitution. The choice we faceis between minimal invalidation of congressional intrusion and completeabdication of our interpretive duty. To choose the latter would be to departfrom the judicial role of constitutional arbiter set forth nearly two centuriesago in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803).

The search for meaning in textual provisions is common to all three judicialeras. And the real challenge to courts is to refrain from being textuallyselective. Yet, in reviewing the second and third eras, it is hard to understandhow one can argue for giving capacious meanings to some constitutional provisionswhile reading others out of the document entirely. Here, appellants suggestthat we give a reading that would rob all meaning from the phrase "Commerce. . . among the several States," giving Congress a blanket power simply"To regulate." It seems patently inconsistent to argue for a DueProcess Clause that means a great deal and a Commerce Clause that meansnothing. How one clause can be robust and the other anemic is a mysterywhen both clauses, after all, are part of our Constitution.

The Supreme Court affirmed in Lopez the notion that "commerce"must mean something short of everything. See 514 U.S. at 567, 115 S. Ct.1624 (noting that to uphold statute at issue "would require us to concludethat the Constitution's enumeration of powers does not presuppose somethingnot enumerated"). This is not a radical principle. Rather than lashingout to greatly confine national power, the judiciary is proceeding, cautiously,to find a limiting principle at the margin. The Lopez limit on congressionalpower is not a strict one, but it is a limit.

C.

Finally, our role in this modern era is not as substantive adjudicators,but as structural referees. The due process decisions of the Lochner andWarren Court eras, as well as the individual rights rulings of the latter,attempted to remove the subject matter of those cases from political debatealtogether. Those decisions prevented the people from seeking resolutionsof their differences through their popularly elected representatives-federaland state. By contrast, the present jurisprudence of federalism is purelyallocative, standing for the simple proposition that the Constitution doesnot cast states as mere marionettes of the central government. This jurisprudenceremoves no substantive decision from the stage of political debate. Nordoes this decision command those seeking to protect the rights of womento exit the arena. States remain free after New York to reach regional solutionsto their hazardous waste problems, after Lopez to criminalize the act ofbringing a firearm within a school zone, after Printz voluntarily to cooperatewith federal law enforcement efforts, and after today's decision to providecivil remedies to women who are battered or raped. No court blocks the pathof legislative initiative in any of these substantive areas.

Instead of aggressively pursuing substantive preferences, this court validatesa structural principle found throughout the Constitution. See U.S. Const.art. I, § 8 (enumerating congressional powers); id. art. I, §10 (limiting powers of the states); id. art. IV, § 4 (guaranteeingstates a republican form of government); id. art. V (incorporating statesand Congress into the amendment process); id. art. VI (making federal lawsupreme); id. amend. X (reserving to states powers not delegated); id. amend.XI (making states immune to suit in federal court). Federalism is the shininggem cut by the Founders. It remains the chief contribution of America todemocratic theory and the structural guarantor of liberty and diversityfor the American people. See Lopez, 514 U.S. at 575-76, 115 S. Ct. 1624(Kennedy, J., concurring).

The role of the judiciary as a structural referee remains essential to thecontinued vitality of our federal system. See id. at 578, 115 S. Ct. 1624(Kennedy, J., concurring) ("[T]he federal balance is too essentiala part of our constitutional structure and plays too vital a role in securingfreedom for us to admit inability to intervene when one or the other levelof Government has tipped the scales too far."). Courts have long adjustedthe structural balance of power in our federal system "through judicialexposition of doctrines such as abstention, the rules for determining theprimacy of state law, the doctrine of adequate and independent state grounds,the whole jurisprudence of pre-emption, and many of the rules governingour habeas jurisprudence." Id. (citations omitted). They have alsocommonly policed the structural lines inherent in the separation of powers.See, e.g., Clinton v. City of New York, 524 U.S. 417, 118 S. Ct. 2091, 141L.Ed.2d 393 (1998); INS v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L.Ed.2d317 (1983); United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L.Ed.2d1039 (1974); Marbury, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60. In so doing, courtshave vindicated a simple, foundational principle: The federal governmentis one of limited powers not because it chooses to be, but because the Constitutionmakes that choice for it.

The judicial role in the structural questions of governance is a time-honoredone. When Justice Black and Justice Harlan debated the incorporation ofthe Bill of Rights against the states through the Fourteenth Amendment,great structural principles were at stake. See, e.g., Malloy, 378 U.S. at14-33, 84 S. Ct. 1489 (Harlan, J., dissenting); Adamson v. California, 332U.S. 46, 68-92, 67 S. Ct. 1672, 91 L.Ed. 1903 (1947) (Black, J., dissenting).Whether one agreed with Justice Black or Justice Harlan, no one doubtedthat the structural question of incorporation was a legitimate debate forthe Court. Those who would call the modern era an illegitimate, activistone too easily forget this tradition. They would have it both ways-approvingwholly of incorporation and then chastising the courts for passing on themeaning of the enumerated powers. But it is important to remind ourselvesof the principle underlying the incorporation debate: The judiciary rightlyresolves structural disputes. Just as the relationship of the Bill of Rightsto the Fourteenth Amendment was a legitimate structural question for theCourt, so too is the debate over the relationship of Article I, Section8 to the Tenth Amendment. It is just as important for the federal governmentto live within its enumerated powers as it is for state governments to respectthe Bill of Rights. Insisting on both sets the state-federal balance right.

III.
The present controversy is a highly charged one. Some will doubtless beamazed that a federal court could find section 13981 unconstitutional whenevery American of good will abhors violence against women. Of course, incursionson dual sovereignty will always carry a measure of democratic sanction,representing as they do the enactments of the elected branches of government.Still, the structural dictates of dual sovereignty must not ebb and flowwith the tides of popular support.

VAWA's civil suit provision falters for the most basic of reasons. Section13981 scales the last redoubt of state government-the regulation of domesticrelations. By attaching civil penalties to criminal, but domestic, conduct,section 13981 "by its terms has nothing to do with 'commerce.'"Lopez, 514 U.S. at 561, 115 S. Ct. 1624. Appellant's defense of the provisionrests on the same analogy rejected in Lopez-that of attenuated causationto national productivity. See id. at 564, 115 S. Ct. 1624 (rejecting "costsof crime" and "national productivity" rationales becausethey would grant unlimited regulatory powers to Congress).

Section 13981 cannot be sustained under Section 5 of the Fourteenth Amendmentfor some of the same reasons that it cannot be sustained as an exerciseof the commerce power. In both cases the displacement of state prerogativesin areas of traditional state concern would be profound. The displacementunder the Fourteenth Amendment would come from the impermissible use ofthe enforcement and remedial powers of Section 5 to redefine Section 1 toinclude prohibitions on purely
private actions. If Section 5 alone were read to allow Congress to regulateprivate (and often purely domestic) conduct, it would, just like an unlimitedreading of the Commerce Clause, intrude on what has traditionally been thecore of the state police power.* From whatever vantage point one views thecase, the rent in the fabric of our federalism would be profound.

Our decision will assuredly be characterized as unjustifiable judicial activism.And just as assuredly, that characterization will miss the mark. It is truethat our holding is "activist" in the sense that one provisionin a federal statute is declared unconstitutional (the remainder of theViolence Against Women Act remains in effect). What is equally true, however,is that today's decision has the distinguishing features of the third periodof judicial scrutiny and not the discrediting features of the previous two.The substance of the issue before us is wholly disparate from Lopez andPrintz and cannot be said to be part of any substantive judicial agenda.The holding here vindicates the structural values of government by reaffirmingthe concept of enumerated powers. And it vindicates the role of the judiciaryin maintaining this structural balance. Finally, it vindicates the textualvalues of the Constitution by refusing to assign a meaning to "commerce"that is nowhere comprehended by the term.

My fine colleagues in dissent would not have it this way. The dissent simplyrewrites the Constitution to its taste. It promotes a congressional powerwithout limitation. Under this view, two pillars of our government willcrumble: The courts would have almost no role in structural disputes andthe states would play no more than a bit part in our federal system.

The restraints the dissent proposes to prevent this constitutional undoingare wholly ineffectual. First, the dissent argues that Congress can actunder the Commerce Clause when it seeks to supplement, not supplant, stateactions. Post at 930. But practically any exercise of congressional powercan be artfully characterized as "supplementary"-it will be therare case where at least some states do not have some laws that attemptin some fashion to deal with the problem Congress seeks to redress. Second,if congressional enactments can conceivably be called civil rights statutes,then according to the dissent the judiciary must abdicate its role. Postat 930-32. Of course, most civil rights statutes should and will be sustainedunder the Commerce Clause. See Heart of Atlanta Motel, Inc. v. United States,379 U.S. 241, 85 S. Ct. 348, 13 L.Ed.2d 258 (1964); Hoffman v. Hunt, 126F.3d 575 (4th Cir. 1997). But statutes are not free from constitutionalscrutiny solely because of their characterization as civil rights enactments.Third, the dissent asserts that in areas where states cannot "handlethe problem," enumerated powers are converted into plenary ones. Postat 931. In practice, this will mean that when the state experimentationthat our federal system envisages does not take the precise form that Congressprefers, Congress can impose a uniform rule.

Through these unexamined labels and glib formulas, none of which have anyfoundation in Supreme Court case law, the dissent would sweep the role ofthe judiciary and the place of the states away. The dissent's response isthat the states can fend for themselves in the political system. See Garciav. San Antonio Metro. Transit Auth., 469 U.S. 528, 554, 105 S. Ct. 1005,83 L.Ed.2d 1016 (1984). This, however, ignores the vast temptation on thepart of Congress to attempt the solution of any and all of our problems,no matter how remote from commerce they may be. I agree that Congress hasgreat latitude in legislating, but under the dissent's rationale, the statesmust meekly and subserviently swallow whatever Congress serves up. If, asthe dissent suggests, judicial acts to safeguard Our Federalism are ipsofacto violations of separation of powers, the role of the courts would notbe what Marbury envisioned and the role of the states would not be whatthe Framers designed.

Maintaining the integrity of the enumerated powers does not mean that statuteswill topple like falling dominos. Rather, the values of federalism mustbe tempered by the maxims of prudence and restraint. There have been signs,of course, that Lopez would presage an era of aggressive intrusion intothe activities of coordinate branches. See, e.g., United States v. OlinCorp., 927 F. Supp. 1502, 1521-33 (S.D. Ala. 1996) (holding that as appliedComprehensive Environmental Response, Compensation and Liability Act (CER-CLA)exceeds Congress' commerce power), rev'd, 107 F.3d 1506 (11th Cir. 1997).Neither the Supreme Court nor the judiciary as a whole, however, has seenfit to take Lopez that far. This is as it should be. A wholesale invalidationof environmental, civil rights, and business regulation would signal a differentand disturbing regime-one other than that which we have now. If modern activismaccelerates to a gallop, then this era will go the way of its discreditedforebear.

In the end, neither swift retreat to cramped notions of commercial activitynor cessation of our judicial role will do. Only a role that is measuredand cautious will ensure that a balanced allocation of powers in our federalsystem remains to protect our individual liberty. Today's holding is a measuredone. To sustain this provision would signal that state governments are dueno more than the sweet pieties of lip service and that no limits whatsoeverexist on the exercise of congressional power.

I would affirm the judgment.

* I believe that City of Boerne by itself effectively disposes of appellant'sSection 5 arguments. The Court in that case was both clear and emphatic:"Congress does not enforce a constitutional right by changing whatthe right is. It has been given the power 'to enforce,' not the power todetermine what constitutes a constitutional violation." City of Boerne,117 S. Ct. at 2164. Here, appellants are seeking the right to redefine theFourteenth Amendment in contravention of not only the amendment's own language,but also the Supreme Court's recent ruling. See id. at 2164-66 (detailingthe federalism rationale underlying the restriction of the Fourteenth Amendmentto state action).
In relying in its Section 5 analysis extensively upon the Civil Rights Cases,109 U.S. 3, 3 S. Ct. 18, 27 L.Ed. 835 (1883), and United States v. Harris,106 U.S. 629, 1 S. Ct. 601, 27 L.Ed. 290 (1883), I do not understand themajority opinion either to adopt or endorse the discredited holdings inthose cases. Rather, the majority relies on them for the same reason thatthe Supreme Court does, for the proposition that "their treatment ofCongress' § 5 power as corrective or preventive, not definitional,has not been questioned." City of Boerne, 117 S. Ct. at 2166.

NIEMEYER, Circuit Judge, concurring:

I join the thorough opinion for the court, concluding that neither the CommerceClause nor Section 5 of the Fourteenth Amendment provides Congress authority
to enact the Violence Against Women Act of 1994, 42 U.S.C. § 13981(this section hereafter referred to as "VAWA" or the "Act").1The broad, virtually limitless reach of VAWA into all violence motivatedby gender, including domestic violence, whether implicating interstate commerceor not, far exceeds these constitutionally enumerated powers which wereintended to be specific and limited grants of federal legislative authority.As the Tenth Amendment states, if a power is not delegated to the UnitedStates or prohibited to the States by the Constitution, it is reserved tothe States or to the people. See U.S. Const. amend. X.

It may be seductive, albeit undisciplined, to conclude that the CommerceClause has a virtually unlimited scope simply because the volume of interstatecommerce has expanded to the point where today it is difficult to delineatebetween interstate and local commerce. That indulgence, however, would leadto the conclusion that the federal structure created by the Constitutionno longer has applicability. Such a position, striking at the heart of ourConstitutional order, would be alarming. Yet, it seems to be the positionadvanced by the government in this case. Because the government has refusedeven to recognize a line of demarcation between federal power authorizedunder the Commerce Clause and the States' retained powers, I write separatelyto address this issue.

Established Supreme Court precedent points to the existence of limits tothe commerce power and defines these limits through two separate modes ofanalysis. Under one mode, the limits of the commerce power are defined bya federal regulation's nexus to interstate commerce. Under the other, theCourt has observed that an overly broad exercise of the commerce power canbe recognized when the exercise substantially infringes the general policepower retained by the states under the Tenth Amendment. I will address eachof these methods for defining limits to the commerce power, after firstsetting the basic factual backdrop.

I

While attending Virginia Polytechnic Institute ("Virginia Tech"),a state-owned university in Blacksburg, Virginia, Christy Brzonkala wassexually assaulted and raped by two football players who also were studentsat Virginia Tech. Some six months after the incident, Brzonkala filed acomplaint against the football players under Virginia Tech's intramuraldisciplinary procedures. She did not pursue criminal charges because shehad not preserved any physical evidence of the rapes. The record is notclear whether she has filed state law tort claims.

Brzonkala claims that persons employed by Virginia Tech, who were overlyprotective of the football program, frustrated university discipline ofthe players even though factual findings had been made in a university sponsoredprocess to support Brzonkala's claim. If true, the alleged conduct by responsibleuniversity officials displays not only an unflattering lack of courage andjudgment, but also a hardened insensitivity to Brzonkala's experience.

This case represents Brzonkala's effort to redress her injury in federalcourt under VAWA and under Title IX of the Education Amendments of 1972to the Civil Rights Act of 1964, 20 U.S.C. § 1681 et seq. The defendantsin this case have challenged the constitutionality of VAWA, while the UnitedStates has intervened to argue that VAWA is constitutional both under theCommerce Clause and under the Equal Protection Clause of the FourteenthAmendment. I address only the Commerce Clause issue.

At oral argument, the government was pressed at some length to articulateits position on how to define the line between a national interest subjectto regulation under the Commerce Clause and a local interest which is beyondthe scope of Congress' legislative power. It continually refused to acceptthe challenge, leaving me with the clear impression that if the politicalpressure were sufficiently great, the government would feel justified inmaintaining the position that Congress could constitutionally regulate localmatters, such as divorces and, indeed, even child custody proceedings. Underthe impact-on-the-economy test relied on by the government, Congress couldrationalize a regulation of these important but traditionally local activitiessimply by amassing the obviously available economic data showing their aggregateimpact on the national economy. I believe that the government's approach,however, reveals a profound misunderstanding of Congress' authority andthe limitations of the commerce power.

II

The Commerce Clause vests in Congress the power to "regulate Commercewith foreign Nations, and among the several States." U.S. Const. art.I, § 8, cl. 3. This power has always been understood to be finite andtherefore inadequate to regulate all commercial activity, including commercialactivity which is purely local in character and effect. In The FederalistNo. 45, James Madison wrote:
The powers delegated by the proposed Constitution to the Federal Government,are few and defined. Those which are to remain in the State Governmentsare numerous and indefinite. The former will be exercised principally onexternal objects, as war, peace, negotiation, and foreign commerce. . .. The powers reserved to the several States will extend to all the objects,which, in the ordinary course of affairs, concern the lives, liberties andproperties of the people; and the internal order, improvement, and prosperityof the State.
The Federalist, at 238 (George W. Carey & James McClellan eds.,1990);see also The Federalist No. 40, at 203 (George W. Carey & James McClellaneds., 1990) (James Madison) (Under the Constitution, the federal government's"powers are limited, and the States in all unenumerated cases, areleft in the enjoyment of their sovereign and independent jurisdiction");Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of theConstitution 179 (1996) (noting that rather than believing in unlimitedfederal legislative power, "most framers agreed that the scope of nationallaw making would remain modest").

In applying this understanding to the Commerce Clause, Chief Justice Marshall,in M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405, 4 L.Ed. 579 (1819),noted that the federal "government is acknowledged by all to be oneof enumerated powers. The principle, that it can exercise only those powersgranted to it, . . . is now universally admitted." See also Gibbonsv. Ogden, 22 U.S. (9 Wheat.) 1, 195, 6 L.Ed. 23 (1824) ("The enumerationpresupposes something not enumerated. . . . The completely internal commerceof a State, then, may be considered as reserved for the State itself").

The Supreme Court's modern Commerce Clause jurisprudence preserves inviolatethis principle that the federal commerce power, while a significant grantof legislative power, is nonetheless finite, possessing identifiable andjudicially enforceable boundaries:
The authority of the federal government may not be pushed to such an extremeas to destroy the distinction, which the commerce clause itself establishes,between commerce "among the several States" and the internal concernsof a State. That distinction between what is national and what is localin the activities of commerce is vital to the maintenance of our federalsystem.
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S. Ct. 615,81 L.Ed. 893 (1937). And the vitality of this principle was maintained inthe Court's recent decision in United States v. Lopez, 514 U.S. 549, 115S. Ct. 1624, 131 L.Ed.2d 626 (1995), striking down the Gun-Free School ZonesAct of 1990 (criminalizing the knowing possession of firearms in a schoolzone) on the grounds that the activity regulated was not economic; it hadtoo tenuous a connection with commerce; and the statutory provision hadno jurisdictional element that would ensure that the prosecuted conductwould have the requisite nexus to interstate commerce. Id. at 561, 115 S.Ct. 1624. Central to its holding in Lopez, the Court explicitly recognizedthat there are outer limits to the reach of the Commerce Clause and thatthere are local and noncommercial activities which may not be reached byCongress under the Clause. See id. at 556-57, 115 S. Ct. 1624.

The Commerce Clause is thus both an enumerated and a limited power authorizingthe United States to regulate interstate commerce. But despite 200 yearsof Commerce Clause jurisprudence, we continue to face the difficult challengeof how to define the limits of the power, distinguishing that which is nationalfrom that which is local. In Jones & Laughlin Steel, the Court upheldthe National Labor Relations Act of 1935 as a proper exercise of the commercepower, reasoning that although that act regulated some intrastate commercialactivity, it did not exceed the Commerce Clause's grant of congressionalpower to regulate interstate commerce because that act only applied to laborpractices "affecting [interstate] commerce." These, the Courtsaid, were the "critical words" limiting the National Labor RelationsBoard's power to regulate labor practices. 301 U.S. at 31, 57 S. Ct. 615.Recognizing that Congress could not regulate local commerce or activityhaving little relation to interstate commerce, the Court observed that intrastateactivities which "have such a close and substantial relation to interstatecommerce that their control is essential or appropriate to protect thatcommerce from burdens and obstructions" fall within the reach of Congressionalpower under the Commerce Clause. Id. at 37, 57 S. Ct. 615. "It is theeffect upon commerce," the Court emphasized, "not the source ofthe injury, which is the criterion." Id. at 32, 57 S. Ct. 615 (citationomitted).

Similarly, in Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L.Ed. 122(1942), a case upholding the exercise of the Commerce Clause power perhapsat its fullest reach, see Lopez, 514 U.S. at 560, 115 S. Ct. 1624, the Courtheld that the Commerce Clause allowed Congress to regulate a farmer's productionof wheat, even for home consumption, when the effect of such consumptionby farmers in the aggregate would directly affect the price of wheat inthe interstate market. See Wickard, 317 U.S. at 127, 63 S. Ct. 82. The Courtnoted that the Commerce Clause, even though conferring a wide-ranging power,nonetheless possesses constitutionally-prescribed limits, and "thereach of that power extends [only] to those intra state activities whichin a substantial way interfere with or obstruct the exercise of the grantedpower." Id. at 124, 63 S. Ct. 82 (emphasis added) (internal quotationmarks omitted). It is noteworthy that wheat production was recognized asan economic activity that had a substantial impact on the price of wheattraded in interstate commerce. Thus, even though wheat production itself"may not be regarded as commerce," it might still be regulatedunder the Commerce Clause "if it exerts a substantial economic effecton interstate commerce." Id. at 125, 63 S. Ct. 82 (emphasis added).

Attempting to delineate the "vital" distinction between nationaland local, the Court in Jones & Laughlin Steel stated that the CommerceClause enables Congress to regulate only intrastate acts which possess a"close and intimate relation to interstate commerce." Id. at 37,57 S. Ct. 615 (emphasis added). And similarly in Lopez, the Court reiteratedthat the Commerce Clause may not be extended
so as to embrace effects upon interstate commerce so indirect and remotethat to embrace them, in view of our complex society, would effectuallyobliterate the distinction between what is national and what is local andcreate a completely centralized government.
Lopez, 514 U.S. at 557, 115 S. Ct. 1624 (quoting Jones & Laughlin Steel,301 U.S. at 37, 57 S. Ct. 615) (emphasis added). Thus, we may conclude thatintrastate activities may be regulated under the Commerce Clause, but onlyif their relationship to interstate commerce is close and intimate and not"indirect and remote."

The requirement that a local activity which Congress seeks to regulate nothave merely an "indirect" effect on interstate Commerce drawsinto question the quality of the nexus between the activity sought to beregulated and the interstate commerce authorized to be regulated. Drawingon the nature of the constitutional power to regulate interstate commerce,I therefore conclude that a local activity, in order to be covered by theCommerce Clause power, must have a direct effect on interstate commercesuch that its regulation "targets" interstate commercial activity.

The requirement that a local activity which Congress seeks to regulate notbe "remote" in effect on interstate commerce is distinct fromthe "direct effect" requirement and draws into question the proximatenessof the activity's causal effect on interstate commerce. When examining remoteness,we can draw on well established tort principles of proximate cause, askingwhether the local activity would stand next in its causation to the effecton interstate commerce and whether its impact is slight or incidental. Seegenerally Black's Law Dictionary 1225-26 (6th ed. 1990). In order not tobe remote, an effect must be proximate and intimately related to interstatecommercial activity.

Thus, to determine whether an intrastate activity substantially affectsinterstate commerce and therefore is neither indirect nor remote, I wouldapply a test which requires that (1) the target of any federal regulationof an intrastate activity must be interstate commerce, even though it maynot be the purpose of the regulation,2 and (2) the effect that the activityhas on interstate commerce must be proximate and not incidental.

In addition to being so limited, the commerce power is also limited to regulatingcommerce. If not inherently clear, this was explicitly pointed out in Lopez.

When defining the "substantially affects" test, the Supreme Courtstated, "Where economic activity substantially affects interstate commerce,legislation regulating that activity will be sustained." Lopez, 514U.S. at 560, 115 S. Ct. 1624 (emphasis added). Applying an economic "subject-matter"requirement, the Court struck down the Gun-Free School Zones Act, notingthat "by its terms [it] has nothing to do with 'commerce' or any sortof economic enterprise however broadly one might define those terms."Id. at 561, 115 S. Ct. 1624; see also id. at 567, 115 S. Ct. 1624 ("Thepossession of a gun in a local school is in no sense an economic activitythat might, through repetition elsewhere, substantially affect any sortof interstate commerce"). Moreover, the Court concluded that the economicimpact of the conduct regulated did not satisfy this subject-matter requirement.The Court recognized that the economic costs of violent crime, which wouldobviously be more likely when guns are present, might be "substantial."Thus, despite the fact that the Gun-Free School Zones Act was clearly rationallyrelated to fighting violent crime and that violent crime might have a substantialnegative effect on the national economy, the Supreme Court found that theact was not a permissible regulation of interstate commerce. The Court explicitlyrejected the "costs of crime" argument as a basis for upholdinga statute under the Commerce Clause. Id. at 564, 115 S. Ct. 1624. The Courtnoted that to accept such reasoning would allow Congress to regulate allviolent crime and all causes of violent crime. This, the Supreme Court found,the Constitution does not permit.

Despite the Supreme Court's rejection of the "cost of crime" reasoningin Lopez, the government advanced a similar argument in this case, positingthat because the costs of domestic violence were set out in Congressional"findings," they were sufficient to sustain a federal regulationon domestic violence involving women. In advancing this argument, the governmentmisses the point of Lopez. Congressional findings on whether violence involvingwomen has an adverse effect on the economy are just as irrelevant to theproper Commerce Clause analysis as were Executive Branch findings that gunviolence had an adverse economic impact. Lopez held that this type of relationshipbetween non-economic activity and the economy does not make the regulatedactivity subject to regulation under the Commerce Clause.

In sum, a statute depending for its validity on the Commerce Clause powermust ultimately both be a regulation that reaches intra-state activity onlyto the extent necessary to regulate interstate commerce and be an economicregulation.

In considering whether VAWA is constitutional under these principles forapplying the Commerce Clause, we begin by noting that violence against womenis not commerce, nor is its regulation under VAWA aimed at the protectionor promotion of interstate commerce. While it is clear that the congressionalfocus was trained on violence directed against women, it is just as clearthat it was not trained on economic or commercial activity. Judge Luttig'sopinion for the court in this case amply describes this congressional focus.See ante, at [23a-29a, 64a-70a]. While Congress went to great lengths tojustify its enactment based on the impact that violence against women hason the national economy, this kind of rationalization was explicitly rejectedin Lopez. See 514 U.S. at 563-64, 115 S. Ct. 1624. The Court observed therethat if it were to accept the cost of crime or the impact of crime on nationalproductivity as justifications, "Congress could regulate any activitythat it found was related to the economic productivity of individual citizens:family law (including marriage, divorce, and child custody) for example."Id. at 564, 115 S. Ct. 1624.

Such incidental rationalizations do not bring Congress within the specificconstitutional grant of authority. The Commerce Clause authorizes only theregulation of interstate commerce. If, in regulating interstate commerce,Congress necessarily must regulate local activity which has a substantialeffect on the interstate commerce it seeks to regulate, then it may do soas long as the overall regulatory scheme is aimed at the protection or promotionof interstate commerce. See Lopez, 514 U.S. at 561, 115 S. Ct. 1624. Forexample, in Wickard, the case identified as reflecting the broadest permissiblereach of the Commerce Clause power, the Court upheld the Agricultural AdjustmentAct of 1938, which regulated the amount of a farmer's harvest, even theportion that was intended for home consumption. The production of wheatwas an important economic activity having a direct and substantial effecton the supply and therefore the price of wheat. In order to regulate thenational wheat market, it was therefore necessary to regulate its importantcomponents.3 The Court noted, "[i]t can hardly be denied that a factorof such volume and variability as home-consumed wheat would have a substantialinfluence on price and market conditions" which fall within the legitimatedomain of Congress under the Commerce Clause. Wickard, 317 U.S. at 128,63 S. Ct. 82. But when, as in the case of VAWA, Congress directs its regulatoryefforts at violence, assaults, and torts, or indeed domestic relations,it does not aim at economic activity. Instead, VAWA aims at a social illwhich only incidently affects interstate commerce. In that sense, the regulatedconduct's effect on commerce can only be characterized as "indirect."

The government argues that the prohibitions of VAWA promote jobs for womenand therefore the economic activity of employment. This argument, however,is not supported by the language of the statute. See 42 U.S.C. § 13981.While data may support the finding that violence against women adverselyaffects the job market and causes an economic loss to the economy, the statutedoes not reflect an intent to address that economic concern; it does notrefer to any job market or workplace, nor does it mention commerce exceptas a rationalization in its "purpose" section. See 42 U.S.C. §13981(a). Moreover, VAWA does not restrict itself to violence that affectsinterstate commerce. Cf. Lopez, 514 U.S. at 561, 115 S. Ct. 1624 (notingthe importance of a "jurisdictional element which would insure, throughcase-by-case inquiry, that the firearm possession in question affects interstatecommerce").4 In providing additional remedies for violence againstwomen, regardless of its connection with interstate commerce, Congress tookaim at a social ill and not at commerce. Indeed, the data, which Congressclaims prompted the enactment of VAWA, indicate Congress' concern with theincreasing amount of violence against women, regardless of its economicimpact. It is precisely such a broad social concern that falls outside thescope of Congress' Commerce Clause's power.
In short, I would hold that the activities regulated by VAWA are too remotefrom interstate commerce and that the regulation of commerce was not thetarget at which VAWA was aimed. For this reason, the enactment of VAWA cannotbe upheld as a proper constitutional exercise of the Commerce Clause.

III

It is self-evident that if the scope of the commerce power is defined toobroadly, our national government would no longer be one of enumerated-andhence limited-powers. This observation brings me to the second method fordiscerning the limits of the Commerce Clause's scope. If a federal regulationostensibly justified by the Commerce Clause unduly infringes on the generalpolice power, a power that was never conferred on the national government,it follows that such regulation exceeds the limited federal power. To supportthis syllogism and apply it in this case, it is therefore necessary to examine(1) whether it is true that the general police power was never intendedto be conferred on the federal government and (2) whether VAWA unduly intrudeson the general police power retained by the States.

Over 200 years ago, issues regarding the scope of the new national government'spowers dominated the debates surrounding the ratification of the Constitution.What had emerged from Philadelphia in 1787 was a legal text creating a governmentconstructed upon principles of federalism. The Constitution accomplishesthis result by limiting the power of the national government, and givingit only enumerated powers. See Marbury v. Madison, 5 U.S. (1 Cranch) 137,176, 2 L.Ed. 60 (1803) ("The powers of the legislature are definedand limited; and that those limits may not be mistaken, or forgotten, theconstitution is written"). In constituting the new national government,no one believed that the people conferred a general police power upon Congress.The Supreme Court most recently observed as much in Lopez, noting that theConstitution withholds "from Congress a plenary police power that wouldauthorize enactment of every type of legislation." 514 U.S. at 566,115 S. Ct. 1624; see also id. at 584, 115 S. Ct. 1624 (Thomas, J., concurring)(cautioning that the "substantial effects" test taken to its logicalextreme would improperly give Congress "a 'police power' over all aspectsof American life"); United States v. Dewitt, 76 U.S. (9 Wall.) 41,43-44, 19 L.Ed. 593 (1869). This proposition is not remarkable because thegeneral police power of the States rests at the core of their sovereignty.Thus, to read the Commerce Clause so broadly as to infringe significantlyon the States' general police power would undermine state sovereignty inviolation of the federal structure created by the Constitution and confirmedby the Tenth Amendment. Consequently, I believe that the Commerce Clausemay not be so broadly interpreted as to authorize wholesale regulation ofthe sphere traditionally regulated by the States through their general policepower.

If the police power was retained by the states and the people, then we mustaddress whether VAWA purports, in contravention of this Constitutional structure,to exercise the general police power.

Because the general police power is recognized to include the right of theStates to promote the public health, safety, welfare, and morals of theState, see Berman v. Parker, 348 U.S. 26, 32, 75 S. Ct. 98, 99 L.Ed. 27(1954), it is not disputed that redress for assault and rape traditionallyfalls within the States' police power. See, e.g., Brecht v. Abrahamson,507 U.S. 619, 635, 113 S. Ct. 1710, 123 L.Ed.2d 353 (1993) ("The Statespossess primary authority for defining and enforcing the criminal law. Incriminal trials they also hold the initial responsibility for vindicatingconstitutional rights. Federal intrusions into state criminal trials frustrateboth the States' sovereign power to punish offenders and their good-faithattempts to honor constitutional rights") (internal quotation marksomitted); United States v. Turkette, 452 U.S. 576, 586 n. 9, 101 S. Ct.2524, 69 L.Ed.2d 246 (1981) (noting that RICO does not interfere with theStates' rights "to exercise their police powers to the fullest constitutionalextent"); see also Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248,104 S. Ct. 615, 78 L.Ed.2d 443 (1984) (noting "the States' traditionalauthority to provide tort remedies to their citizens").

Moreover, the redress of sexual assaults and rape is a police power thatthe States, including Virginia, have traditionally exercised. Virginia lawat the time that Brzonkala was attacked identified various crimes whoseprosecution might cover the attacks on her. See, e.g., Va. Code Ann. §18.2-61 (rape); Va. Code Ann. § 18.2-67.3 (aggravated sexual battery);Va.Code Ann. § 18.2-67.1 (forcible sodomy); Va. Code Ann. § 18.2-67.5(attempted rape, forcible sodomy, object sexual penetration, aggravatedsexual battery, and sexual battery). The punishment for rape in Virginiais five years to life imprisonment, and aggravated sexual battery carriesa maximum jail sentence of twenty years. Va. Code Ann. § 18.2-61(C),18.2-67.3(B). Moreover, Brzonkala would have civil claims against her attackersunder established tort principles. See, e.g., Parsons v. Parker, 160 Va.810, 170 S.E. 1 (1933) (holding that Virginia law recognizes the civil actionfor rape). And Virginia's interest in exercising its police powers to prohibitand to remedy sexual assaults has been longstanding. Indeed, the commonlawof Virginia, as it existed before the United States Constitution, criminalizedthis conduct. See, e.g., For the Colony in Virginiea Britannia: Lawes Divine,Morall and Martiall, etc. 12 (David H. Flaherty ed., 1969) (1612) (punishingrape with the death penalty under "Dale's Code," Virginia's earliestcode of law); Thomas Jefferson, Notes on the State of Virginia 143-44 (WilliamPeden ed., 1954) (1787) (proposing to proportion punishments for crimesexisting in Virginia during the period of the Articles of Confederation,which included rape).

Finally, as Virginia has asserted in its brief in this case, it enforcesits sexual assault laws and in practice provides victims with "an arrayof remedies against the perpetrators to redress [these] wrong[s]."Statistical data confirm this assertion. See Virginia Criminal SentencingCommission, Annual Report 19-20, (1997). While data are not available forthe number of prosecutions as a percentage of the total number of sexualassaults that have taken place, the Virginia courts' compliance with sentencingguidelines for rape is over 90% and their compliance with sexual assaultrecommendations is over 70%. More revealing is the fact that the greaternoncompliance in sexual assault cases can be attributed to the courts' treatingsexual offenders more harshly than the guidelines recommend. See id.

Thus, while the general police power of the States, and of Virginia in particular,covers conduct amounting to sexual assault and rape, VAWA purports to redressthat same conduct, limiting its scope only to conduct motivated by gender,as both the language of the statute itself and Congress' explanation forit demonstrate. The statute creates a federal cause of action against aperson committing a "crime of violence motivated by gender" anddefines a crime of violence to be "an act or series of acts that wouldconstitute a felony against the person or that would constitute a felonyagainst property if the conduct presents a serious risk of physical injuryto another." 42 U.S.C. §§ 13981(c), (d)(2)(A). In creatingthis cause of action, Congress sought to redress all violence against womenand did not limit its regulation to violence that has an economic impact,whether on interstate commerce or not. As Justice Kennedy observed in Lopezabout the Gun-Free School Zones Act of 1990, "neither the actors northeir conduct has a commercial character, and neither the purposes nor thedesign of the statute has an evident commercial nexus." 514 U.S. at580, 115 S. Ct. 1624 (Kennedy, J., concurring). These same words describeVAWA. While domestic violence of the type regulated by VAWA undoubtedlyimpacts the economy, as does almost every human activity, the virtuallyunlimited scope of domestic violence covered by VAWA can be redressed onlyby exercise of the general police power by the states.

Violence against women is undoubtedly a national problem in that it is aproblem that exists throughout every state in the nation. The governmentcreated by our Constitution, however, demands not that the problem be repeatedin every state but that we determine whether that violence is a federalproblem, that is, a problem that can be redressed with a federal power.The inquiry, therefore, turns to whether the Constitution enumerates a powerwith which our federal Congress can regulate violence against women generally.If not, then the Constitution, by its own terms, relegates regulation ofthe activity "to the States respectively, or to the people." U.S.Const. amend. X.

I recognize that the power to regulate commerce, if exercised by an enactmentin fact aimed at regulating commerce, might incidentally overlap with theexercise of the general police power and that such an overlap would notper se render the enactment unconstitutional. But it is clear that Congress'undertaking to regulate violence against women through VAWA is not evenaimed at the regulation of commerce. In its reports, Congress rationalizedits statute only with the argument that the cost of violence against womengenerally adversely affects the economy. See, e.g., S. Rep. No. 101-545,at 33 (1990) (violence against women is estimated to cost society "atleast $3 billion-not million, but billion-dollars a year"); S. Rep.No. 101-545, at 37 (1990) (noting that domestic violence has economic costto the family and leads to homelessness and increased absences from work);S. Rep. No. 103-138, at 41 (1993) ("estimates suggest that we spend$5 to $10 billion a year on health care, criminal justice, and other socialcosts of domestic violence"). But this cost-of-crime justificationdoes not limit the statutory language to the regulation of commerce; ratherit is a generalized rationalization that can be made equally with respectto all assaults, batteries, and indeed even murders. Each murder, for example,removes permanently from the economy a potentially productive citizen andfractures families causing further economic impact. Moreover, nowhere canwe find any suggestion that women as a class have a more intimate connectionwith commerce than do men. The statute does not confine itself to the commerce-regulationpower, and the regulation of commerce is not its target.

Because VAWA seeks to regulate activity so broadly that it exercises theStates' general police power, I am further persuaded that the Act cannotbe justified by the limited power of the Commerce Clause.

IV

In summary, the Commerce Clause authorizes Congress to regulate commerceamong the States, i.e. , the intercourse of economic activity among theStates, and local activity insofar as it substantially affects interstatecommerce. To satisfy this intrastate reach of the Commerce Clause, however,the effect of the intrastate activity on interstate commerce must be neitherindirect nor remote; the federal regulation must be aimed at the regulationof interstate commerce, even though its purpose may be otherwise. Moreover,the scope of the Commerce Clause must be interpreted to preserve the federalstructure of the Constitution and the States' general police power as anessential aspect of their sovereignty within that structure. Because VAWAregulates intrastate activity too broadly, detaching itself from any semblanceof regulating interstate commerce, it is unconstitutional.

1 I also agree with the remand of the Title IX claims.
2 For example, Congress may enact legislation aimed at interstate commerce,even if its purpose is to promote social goals. The Freedom of Access toClinic Entrances Act of 1994 might be such a law. See Hoffman v. Hunt, 126F.3d 575, 582-88 (4th Cir. 1997) (upholding against a Commerce Clause challengethe Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. §248).
3 This is permissible because Congress has the power to "make all lawswhich shall be necessary and proper" for executing any of its enumeratedpowers. U.S. Const. art. I, § 8, cl. 18.
4 Because VAWA contains no jurisdictional hook, this case does not presentthe issue of how far Congress can extend its power, if at all, to enactlegislation through the use of jurisdictional hooks. Cf. Katzenbach v. McClung,379 U.S. 294, 85 S. Ct. 377, 13 L.Ed.2d 290 (1964).

DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

In response to a mountain of compelling evidence that violence animatedby gender bias deprives many citizens of their civil rights, substantiallyaffects the national economy and interstate commerce, and creates a profoundproblem that the states had been unable to remedy, Congress enacted theViolence Against Women Act of 1994. In passing this legislation, Congresstook care to identify the constitutional source of its authority, expresslyfinding that the regulated activity-gender-motivated violence-has a "substantialadverse affect on interstate commerce." Furthermore, Congress specificallylimited the reach of the statute challenged here, in order to ensure thatit did not interfere with any state law or regulate in any area of traditionalstate concern.

Nevertheless, a majority of this court today holds that Congress had nopower to enact this legislation. The majority can reach this conclusiononly by disregarding controlling Supreme Court precedent, by refusing togive Congress's eminently rational findings proper deference, by creatingtroubling new rules of constitutional analysis, and by mischaracterizingthe statute before us.

I recognize that people of good will-including federal judges-could believethat the statute challenged here does not constitute good public policy.But judges' policy choices provide no basis for finding a statute unconstitutional.See Vance v. Bradley, 440 U.S. 93, 97, 99 S. Ct. 939, 59 L.Ed.2d 171 (1979)("The Constitution presumes that, absent some reason to infer antipathy,

even improvident decisions will eventually be rectified by the democraticprocess and that judicial intervention is generally unwarranted no matterhow unwisely we may think the political branch has acted."). Thus,regardless of our personal policy choices, we must uphold a statute unlessit violates the Constitution.

Proper judicial review of the massive congressional record inexorably leadsto the conclusion that Congress had a rational basis for finding that gender-motivatedviolence substantially affects interstate commerce. Further, even when subjectedto the most searching examination, it is clear that this carefully drawnstatute neither interferes with state regulation nor legislates in an areaof traditional state concern. Accordingly, I believe a court must concludethat Congress properly exercised its constitutional authority in enactingthis statute. Therefore, I respectfully dissent.
I.
When considering the appeal of "an order granting a motion to dismissunder Fed. R. Civ. P. 12(b)(6), [a court] must accept as true the factsalleged in the complaint." McNair v. Lend Lease Trucks, Inc., 95 F.3d325, 327 (4th Cir. 1996). Christy Brzonkala, who entered Virginia PolytechnicInstitute (Virginia Tech) as a freshman in the fall of 1994, alleges thefollowing facts in her complaint.

On the evening of September 21, 1994, Brzonkala and another female studentmet two men who Brzonkala knew only by their first names and their statusas members of the Virginia Tech football team. Within thirty minutes offirst meeting Brzonkala, these two men, later identified as Antonio Morrisonand James Crawford, raped her.

Brzonkala and her friend met Morrison and Crawford on the third floor ofthe dormitory where Brzonkala lived. All four students talked for approximatelyfifteen minutes in a student dormitory room. Brzonkala's friend and Crawfordthen left the room. Morrison immediately asked Brzonkala if she would havesexual intercourse with him. She twice told Morrison "no," butMorrison was not deterred. As Brzonkala got up to leave the room, Morrisongrabbed her and threw her, face-up, on a bed. He pushed her down by theshoulders and disrobed her. Morrison turned off the light, used his armsto pin down her elbows, and pressed his knees against her legs. Brzonkalaattempted to push Morrison off, but to no avail. Without using a condom,Morrison forcibly raped her.

Before Brzonkala could recover, Crawford came into the room and exchangedplaces with Morrison. Crawford also raped Brzonkala by holding down herarms and using his knees to pin her legs open. He, too, used no condom.When Crawford was finished, Morrison raped her for a third time, again holdingher down and again without a condom.

When Morrison had finished with Brzonkala, he warned her "You betternot have any fucking diseases." In the months following the rape, Morrisonannounced publicly in the dormitory's dining room that he "like[d]to get girls drunk and fuck the shit out of them."

Following the assault, Brzonkala became depressed and avoided contact withmost residents of her dormitory outside of her own room. She radically changedher appearance by cutting off her long hair. She ceased attending classesand eventually attempted suicide. She sought assistance from a VirginiaTech psychiatrist, who prescribed anti-depressant medication. Neither thepsychiatrist nor any other Virginia Tech employee made more than a cursoryinquiry into the cause of Brzonkala's distress. She later sought and receiveda retroactive withdrawal from Virginia Tech for the 1994-95 academic year.

Approximately a month after Morrison and Crawford assaulted Brzonkala, sheconfided in her roommate that she had been raped, but could not bring herselfto discuss the details. It was not until February 1995 that Brzonkala wasable to identify Morrison and Crawford as the men who had raped her. Twomonths later, she filed a complaint against them under Virginia Tech's currentsexual assault policy, which had been formally released for disseminationto students on July 1, 1994, but was not yet incorporated into the StudentHandbook. After Brzonkala filed her complaint, she learned that anothermale student athlete was overheard advising Crawford that he should have"killed the bitch."

Brzonkala did not pursue criminal charges against Morrison or Crawford,believing that criminal prosecution was impossible because she had not preservedany physical evidence of the rape. Virginia Tech did not report the rapesto the police, and did not urge Brzonkala to reconsider her decision notto do so. Sexual assault of a female student by a male student is the onlyviolent felony that Virginia Tech authorities do not automatically reportto the university or town police.

Virginia Tech held a hearing on Brzonkala's complaint against Morrison andCrawford. At the hearing, which was tape-recorded and lasted three hours,a number of persons, including Morrison and Crawford, testified. Morrisonadmitted that even though Brzonkala had twice told him "no," hehad sexual intercourse with her in the dormitory on September 21. Crawford,who denied that he had sexual contact with Brzonkala (a denial corroboratedby his suitemate, Cornell Brown), confirmed that Morrison had engaged in"sexual contact" with Brzonkala.

The Virginia Tech judicial committee found insufficient evidence to takeaction against Crawford, but found Morrison guilty of sexual assault. Thecommittee imposed an immediate suspension on Morrison for two semesters(one school year). In May, 1995, Morrison appealed this decision, claimingthat the college had denied him his due process rights and had imposed anunduly harsh and arbitrary sanction. Cathryn T. Goree, Virginia Tech's Deanof Students, notified Brzonkala in a letter dated May 22, 1995 that shehad rejected Morrison's appeal and upheld his suspension for the Fall 1995and Spring 1996 semesters. According to Virginia Tech's published rules,the decision of Dean Goree, as the appeals officer on this matter, was final.

In the first week of July 1995, however, Dean Goree and another VirginiaTech official, Donna Lisker, personally called on Brzonkala at her homein Fairfax, Virginia, a four-hour drive from Virginia Tech. These officialsadvised Brzonkala that Morrison's attorney had threatened to sue the schoolon due process grounds, and that Virginia Tech thought there might be meritto Morrison's "ex post facto" challenge that he was charged undera sexual assault policy that was not yet spelled out in the Student Handbook.Dean Goree and Ms. Lisker told Brzonkala that Virginia Tech was unwillingto defend in court the school's decision to suspend Morrison for a year,and that are a rehearing under the university's disciplinary policy as itexisted prior to the adoption of the sexual assault policy was required.To induce Brzonkala to participate in a second hearing, Dean Goree and Ms.Liskerassured Brzonkala that Virginia Tech officials believed her story, and thatthe second hearing was a mere technicality to cure the school's error inbringing the first complaint under a version of the sexual assault policynot contained in the Student Handbook.

Brzonkala submitted to a second hearing, which was scheduled for late July.This hearing was de novo and lasted seven hours, more than twice as longas the first hearing. Brzonkala was required to engage her own legal counselat her own expense. Moreover, the university belatedly informed her thatstudent testimony given at the first hearing would not be admissible atthe second hearing and that, if she wanted the second judicial committeeto consider this testimony, she would have to submit sworn affidavits. Becauseshe received insufficient notice, it was impossible for Brzonkala to obtainthe necessary affidavits from her student witnesses. In contrast, the schoolprovided Morrison with sufficient notice to give him ample time to procurethe sworn affidavits of his student witnesses. Virginia Tech exacerbatedthis inequity by refusing both Brzonkala and her attorney access to thetape recordings of the first hearing, while granting Morrison and his attorneycomplete and early access to those tapes. Finally, Virginia Tech officialsprevented Brzonkala from mentioning Crawford in her testimony because chargesagainst him had been dismissed; as a result she had to present a truncatedversion of events.

Nevertheless, the university judicial committee found Morrison guilty ofabusive conduct, and re-imposed the sanction that it had set after the firsthearing: an immediate two-semester suspension.

Morrison again appealed; this appeal was successful. On August 21, 1995,in a letter attached to the complaint, Senior Vice-President and ProvostPeggy Meszaros notified Morrison of her decision to set aside his sanction.The Provost explained that in her view "there was sufficient evidenceto support the decision that [he] violated the University's Abusive ConductPolicy and that no due process violation occurred in the handling of [his]case." She further informed Morrison, however, that his immediate suspensionfor one school year was "excessive when compared with other cases wherethere has been a finding of violation of the Abusive Conduct Policy."Provost Meszaros did not elaborate on the "other cases" to whichshe was referring. Instead of an immediate one-year suspension, the Provostimposed "deferred suspension until [Morrison's] graduation from VirginiaTech." In addition, Morrison was "required to attend a one-houreducational session with Rene Rios, E.O./AA Compliance Officer regardingacceptable standards under University Student Policy."

Virginia Tech did not notify Brzonkala of these changes in the outcome ofher case. Instead, on August 22, 1995, Brzonkala learned from an articlein The Washington Post that the university had lifted Morrison's suspensionand that he would return to campus for the Fall 1995 semester. Morrisondid in fact return to Virginia Tech in the Fall of 1995, on a full athleticscholarship.

Upon learning that the university had set aside Morrison's suspension andwas permitting him to return in the Fall, Brzonkala canceled her own plansto return to Virginia Tech. She did this because she feared for her personalsafety and because she believed that Virginia Tech had repudiated her claimthat Morrison had raped her.

Brzonkala believes and so alleges that Head Football Coach Frank Beamer,as part of a coordinated university plan to allow Morrison to play footballin 1995, participated directly and indirectly in the process by which thesanction against Morrison was overturned.

On December 27, 1995, Brzonkala filed suit against Morrison, Crawford, andVirginia Tech. On March 1, 1996, she amended her complaint. Her amendedcomplaint alleges inter alia that Virginia Tech, in its handling of herrape claims and failure to punish the rapists in any meaningful manner,violated Title IX of the Education Amendments of 1972, 20 U.S.C. §§1681-1688 (1994). She also alleges that Morrison and Crawford brutally gang-rapedher because of gender animus in violation of Subtitle C of the ViolenceAgainst Women Act of 1994 (VAWA), 42 U.S.C. § 13981 (1994). The UnitedStates intervened to defend the constitutionality of VAWA.

The district court dismissed the Title IX claims against Virginia Tech forfailure to state a claim upon which relief could be granted, and it dismissedBrzonkala's VAWA claims against Morrison and Crawford because it found VAWAto be beyond Congress's constitutional authority. I address first the TitleIX claim and then the VAWA claim.
II.
Title IX of the Education Amendments of 1972 provides in relevant part:
No person in the United States shall, on the basis of sex, be excluded fromparticipation in, be denied the benefits of, or be subjected to discriminationunder any education program or activity receiving Federal financial assistance.. . .
20 U.S.C. § 1681(a)(1994). Virginia Tech concedes that it is an "educationprogram . . . receiving Federal financial assistance." Hence, the onlyquestion is whether Brzonkala has sufficiently alleged that she was "subjectedto discrimination" by Virginia Tech "on the basis of sex."20 U.S.C. § 1681(a).

The district court recognized that Brzonkala pled a Title IX claim on thebasis of two distinct legal theories: a hostile environment theory, thatVirginia Tech responded inadequately to a sexually hostile environment;and a disparate treatment theory, that Virginia Tech discriminated againstBrzonkala because of her sex in its disciplinary proceedings. For the reasonsset forth in the panel opinion in this case, Brzonkala v. Virginia PolytechnicInst., 132 F.3d 949, 961-62 (4th Cir. 1997), I believe that Brzonkala hasfailed to allege a disparate treatment claim.

As for the hostile environment claim, determination of its validity mustawait the Supreme Court's decision in Davis v. Monroe County Bd. of Educ.,120 F.3d 1390 (11th Cir. 1997), cert. granted, -- U.S. --, 119 S. Ct. 29,141 L.Ed.2d 789 (1998), which should provide substantial guidance as towhether Title IX establishes a cause of action to remedy a hostile environmentof the sort Brzonkala alleges. The majority apparently agrees, but it remandsthe case so that the district court can hold the resolution of this issuein abeyance pending the Davis decision. Remand of this legal question, whichwill almost inevitably be appealed, only wastes time and scarce judicialresources. Rather than creating unnecessary extra work for the districtcourt, we should, as we ordinarily do, hold our own opinion in abeyanceuntil the Supreme Court rules. See, e.g., Lissau v. Southern Food Serv.,Inc., 159 F.3d 177, 181 (4th Cir. 1998); United States v. Hairston, 96 F.3d102, 105 (4th Cir. 1996).
III.
With regard to the civil rights provision of the Violence Against WomenAct of 1994 (VAWA), 42 U.S.C. § 13981 (1994), the district court heldthat Brzonkala's complaint stated a claim against Morrison and Crawford.The court concluded, however, that this portion of VAWA was unconstitutionalbecause Congress lacked the authority to enact it. Like the majority, Iagree with the district court that Brzonkala stated a claim. After carefulreview of the statute, however, I can only conclude that Congress actedwithin its broad authority in passing this legislation. I would thereforereverse the district court's ruling to the contrary and allow Brzonkalato pursue her claim.
A.
In September 1994, after four years of hearings, Congress enacted VAWA inorder to address "the escalating problem of violence against women."S.Rep. No. 103-138, at 37 (1993). Subtitle C, the portion of the statuteat issue in this case, establishes the right upon which a civil rights claimcan be brought:
All persons within the United States shall have the right to be free fromcrimes of violence motivated by gender. . . .
42 U.S.C. § 13981(b).
The statute goes on to set forth the elements necessary to plead and provesuch a claim:
(c) Cause of action
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 violencemotivated 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 forthe recovery of compensatory and punitive damages, injunctive and declaratoryrelief, and such other relief as a court may deem appropriate.
(d) Definitions
For purposes of this section-
(1) the term "crime of violence motivated by gender" means a crimeof violence committed because of gender or on the basis of gender, and due,at least in part, to an animus based on the victim's gender; and
(2) the term "crime of violence" means-
(A) an act or series of acts that would constitute a felony against theperson or that would constitute a felony against property if the conductpresents a serious risk of physical injury to another, and that would comewithin the meaning of State or Federal offenses described in section 16of Title 18, whether or not those acts have actually resulted in criminalcharges, prosecution, or conviction and whether or not those acts were committedin the special maritime, territorial, or prison jurisdiction of the UnitedStates; and
(B) includes an act or series of acts that would constitute a felony describedin subparagraph (A) but for the relationship between the person who takessuch action and the individual against whom such action is taken.
42 U.S.C. § 13981. Thus, to state a claim under § 13981(c) a plaintiffmust allege that he or she has been the victim of a specific kind of felony-"acrime of violence motivated by gender." 42 U.S.C. § 13981(c).

Morrison and Crawford do not argue that Brzonkala's allegation of gang rapefails to satisfy § 13981(d)(2)'s definition of a "crime of violence."However, they do briefly assert that Brzonkala has failed to allege a "crimeof violence motivated by gender." 42 U.S.C. § 13981(c) (emphasisadded).

A "crime of violence motivated by gender" is defined as "acrime of violence committed because of gender or on the basis of gender,and due, at least in part, to an animus based on the victim's gender."42 U.S.C. § 13981(d)(1). Congress has indicated that "[p]roofof 'gender motivation' under" Subtitle C of VAWA is to "proceedin the same ways proof of race or sex discrimination proceeds under othercivil rights laws. Judges and juries will determine 'motivation' from the'totality of the circumstances' surrounding the event." S.Rep. No.103-138, at 52; see also S.Rep. No. 102-197, at 50 (1991).

The statute does not reach "[r]andom acts of violence unrelated togender." 42 U.S.C. § 13981(e)(1). However, bias "can be provenby circumstantial as well as indirect evidence." S.Rep. No. 103-138,at 52. "Generally accepted guidelines for identifying hate crimes mayalso be useful" in determining whether a crime is gender-motivated,such as "language used by the perpetrator; the severity of the attack(including mutilation); the lack of provocation; previous history of similarincidents; absence of any other apparent motive (battery without robbery,for example); common sense." Id. at 52 n. 61.

Brzonkala alleges that two virtual strangers, Morrison and Crawford, brutallyraped her three times within minutes of first meeting her. Although Brzonkaladoes not assert that they mutilated her, the brutal and unprotected gangrape itself constitutes an attack of significant "severity." Id.Moreover, Brzonkala alleges that the rapes were completely without "provocation."Id. One of her assailants conceded during the college disciplinary hearingthat Brzonkala twice told him "no" before he initially raped her.Further, there is an absence of any "apparent motive" for therapes other than gender bias. Id. For example, no robbery or other theftaccompanied the rapes.

Finally, Brzonkala alleges that when Morrison had finished raping her forthe second time he told her, "You better not have any fucking diseases."She also alleges that Morrison later announced in the college dining room,"I like to get girls drunk and fuck the shit out of them." Verbalexpression of bias by an attacker is certainly not mandatory to prove genderbias, but it is "helpful." S. Rep. No. 103-138, at 51. As thedistrict court noted, Morrison's "statement reflects that he has ahistory of taking pleasure from having intercourse with women without theirsober consent" and that "[t]his statement indicates disrespectfor women in general and connects this gender disrespect to sexual intercourse."935 F. Supp. at 785. In addition, since Brzonkala alleged that Morrisonand Crawford engaged in a conspiracy to rape her, Morrison's comments arealso relevant in assessing Crawford's liability. See Loughman v. Consol-PennsylvaniaCoal Co., 6 F.3d 88, 103 (3rd Cir. 1993) (in a civil conspiracy "everyconspirator is jointly and severally liable for all acts of co-conspiratorstaken in furtherance of the conspiracy"); United States v. Carpenter,961 F.2d 824, 828 n. 3 (9th Cir. 1992) (holding that "acts and statementsin furtherance of the conspiracy may be attributed to" a co-conspiratorand citing Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S. Ct. 1180,90 L.Ed. 1489 (1946)); United States v. Chorman, 910 F.2d 102, 111 (4thCir. 1990) (same).

In sum, Brzonkala has clearly alleged violations of the civil rights provisionof VAWA. I find puzzling the majority's statement that these allegations"do not necessarily compel the conclusion that Morrison acted withanimus toward women as a class, and might not even be sufficient, withoutmore, to defeat a motion either for summary judgment or for a directed verdict."Ante, at 830. If the majority is simply indicating that Brzonkala may beunable to prove some or all of the allegations in her complaint, the statementis unremarkable. But if the majority is suggesting that, even if Brzonkalaoffers adequate evidence to support each and every one of these allegations,such evidence still might not be sufficient to prove a claim of gender-animatedviolence, the statement is incomprehensible. Brzonkala has alleged virtuallyall of the earmarks of a violent, felonious "hate crime": an unprovoked,severe attack, triggered by no motive other than gender-based animus, andaccompanied by language clearly reflecting such animus. If she providesevidence proving these allegations, she is entitled to have a factfinderweigh that evidence.
B.
The remaining, and critical, issue is whether the district court correctlyheld that Congress exceeded its constitutional authority in enacting thecivil rights provision of VAWA. Congress directly addressed this very question.On the basis of numerous specific findings and a host of evidence, Congressstated in the statute itself that it was invoking its authority "[p]ursuantto . . . section 8 of Article I of the Constitution" in order to protectthe civil rights of "victims of gender motivated violence and to promotepublic safety, health, and activities affecting interstate commerce by establishinga Federal civil rights cause of action for actions of violence motivatedby gender." 42 U.S.C. § 13981(a).1 Article I, Section 8, Clause3 of the Constitution empowers Congress to "regulate Commerce withforeign Nations, and among the several States, and with the Indian Tribes."U.S. Const. art. I, § 8, cl. 3. Our task is to determine whether Congresshad a rational basis for reaching this conclusion.
1.
In making this assessment, we must keep certain principles in mind. First,the Supreme Court has directed that when a court is "asked to invalidatea statutory provision that has been approved by both Houses of Congressand signed by the President, particularly an Act of Congress that confrontsa vexing national problem, it should do so only for the most compellingconstitutional reasons." Mistretta v. United States, 488 U.S. 361,384, 109 S. Ct. 647, 102 L.Ed.2d 714 (1989). This is "particularly"true where, as here, the legislative "judgments are based in part onempirical determinations." Board of Educ. of Westside Community Schoolsv. Mergens, 496 U.S. 226, 251, 110 S. Ct. 2356, 110 L.Ed.2d 191 (1990).

Second, a court faced with a challenge to an exercise of the commerce powerowes even greater deference to Congress than a court asked to determinewhether a federal statute violates an express prohibition of the Constitution.As Justice Kennedy explained in United States v. Lopez, "[t]he substantialelement of political judgment in Commerce Clause matters leaves our institutionalcapacity to intervene more in doubt than when we decide cases, for instance,under the Bill of Rights even though clear and bright lines are often absentin the latter class of disputes." 514 U.S. 549, 579, 115 S. Ct. 1624,131 L.Ed.2d 626 (1995) (Kennedy,J., concurring); see also id. at 568, 115S. Ct. 1624 ("The history of the judicial struggle to interpret theCommerce Clause . . . counsels great restraint before the Court determinesthat the Clause is insufficient to support an exercise of the national power.").In accordance with these principles, the Supreme Court has long held, andrecently reiterated in Lopez, that the proper inquiry for a court when consideringa challenge to Congress's Commerce Clause power is "whether a rationalbasis existed for concluding that a regulated activity sufficiently affectedinterstate commerce." 514 U.S. at 557, 115 S. Ct. 1624.

In Lopez, the Supreme Court concluded that the Gun-Free School Zones Actof 1990 (GFSZA), 18 U.S.C. § 922(q)(1994), fell outside Congress'scommerce power. Id. at 567, 115 S. Ct. 1624. Several characteristics ofthe GFSZA led the Court to this conclusion. As the facts of the case demonstrated,and as the Court noted, id. at 561 n. 3, 115 S. Ct. 1624, the GFSZA effectivelysupplanted state criminal regulation with federal regulation; the defendanthad initially been charged by state police with violation of a state criminallaw punishing the possession of a firearm at a school, but those chargeswere dropped after federal agents charged him with violation of the GFSZA,id. at 551, 115 S. Ct. 1624. Moreover, although the Government defendedthe GFSZA as a proper exercise of the commerce power, the statute by itsown terms had "nothing to do with 'commerce,'" contained no jurisdictionalelement ensuring a connection to interstate commerce in each case, and wassupported by no congressional findings demonstrating that gun possessionnear schools had a substantial effect on interstate commerce. Id. at 561-62,115 S. Ct. 1624. The Supreme Court noted that, in these circumstances, it"would have to pile inference upon inference" to find a rationalbasis for concluding that the activity regulated by the GFSZA "substantiallyaffect[s] any sort of interstate commerce." Id. at 567, 115 S. Ct.1624. This the Court declined to do, and it therefore declared that Congresshad exceeded its Commerce Clause power in enacting the GFSZA. Id.

In contrast to the congressional silence about its basis for passing theGFSZA, Congress created a voluminous record demonstrating its reasons forenacting VAWA. Accordingly, a court in this case can begin where the LopezCourt could not, by "evaluat[ing] the legislative judgment that theactivity in question substantially affected interstate commerce." Id.at 563, 115 S. Ct. 1624; see also City of Boerne v. Flores, 521 U.S. 507,117 S. Ct. 2157, 2169-70, 138 L.Ed.2d 624 (1997) (noting the importanceof Congressional findings in determining the "appropriateness of [Congress's]remedial measures"). In taking the legislative record supporting SubtitleC into account, I recognize that discerning a rational basis "is ultimatelya judicial rather than a legislative question," Lopez, 514 U.S. at557 n. 2, 115 S. Ct. 1624 (quoting Heart of Atlanta Motel, Inc. v. UnitedStates, 379 U.S. 241, 273, 85 S. Ct. 348, 13 L.Ed.2d 258 (1964) (Black,J., concurring)), and that "simply because Congress may conclude thata particular activity substantially affects interstate commerce does notnecessarily make it so." Id. (quoting Hodel v. Virginia Surface Mining& Reclamation Ass'n, 452 U.S. 264, 311, 101 S. Ct. 2352, 69 L.Ed.2d1 (1981) (Rehnquist, J., concurring)). But when Congress has made a specificfinding that the regulated activity adequately affects interstate commerce,a "court must defer" to that finding if Congress had "anyrational basis for such a finding." Hodel, 452 U.S. at 276, 101 S.Ct. 2352.

The Supreme Court has consistently recognized the importance of deferenceto Congressional findings in Commerce Clause cases and has never struckdown a statute that was supported by a finding that the regulated activityhad the necessary effect on commerce. See Lawrence H. Tribe, American ConstitutionalLaw, 310-11 (2d. ed. 1988) (noting that the Supreme Court "has withoutfail given effect to" congressional findings). When the rationale forcongressional action appears in the legislative record, the proper inquiryin assessing commerce power challenges involves examination of that recordand determination of whether it demonstrates that Congress had a rationalbasis for finding that the regulated activity substantially affects interstatecommerce. See, e.g., Hodel, 452 U.S. at 275-83, 101 S. Ct. 2352; Hodel v.Indiana, 452 U.S. 314, 326, 101 S. Ct. 2376, 69 L.Ed.2d 40 (1981); Perezv. United States, 402 U.S. 146, 155-56, 91 S. Ct. 1357, 28 L.Ed.2d 686 (1971);Katzenbach v. McClung, 379 U.S. 294, 299-301, 85 S. Ct. 377, 13 L.Ed.2d290 (1964); Heart of Atlanta Motel, 379 U.S. at 252-254, 85 S. Ct. 348.See also United States v. Leshuk, 65 F.3d 1105, 1111-12 (4th Cir. 1995)(rejecting a Lopez challenge to the Comprehensive Drug Abuse Preventionand Control Act by relying heavily upon Congress's "detailed findings"concerning the interstate commerce effects of the regulated activity). Accordingly,I turn to that inquiry.
2.
The congressional findings and testimony that support the enactment of VAWAunder the Commerce Clause are detailed and extensive.2 Space limitationsprevent setting them all out here. But even abbreviated excerpts from thevast legislative record demonstrate that Congress carefully and repeatedlydocumented the substantial effect that gender-based violence has on interstatecommerce and the national economy. For example, Congress found that:
"Gender-based crimes and the fear of gender-based crimes restrictsmovement, reduces employment opportunities, increases health expenditures,and reduces consumer spending, all of which affect interstate commerce andthe national economy." S. Rep. No. 103-138, at 54.
"Gender-based violence bars its most likely targets-women-from fullparticipation in the national economy." Id.
"[P]roblem[s] of domestic violence . . . because of their interstatenature, transcend the abilities of State law enforcement agencies."Id. at 62.
Indeed, in the Conference Committee Report on VAWA, Congress made detailedand express findings, which were originally part of the text of the statuteitself and were removed only to avoid cluttering the United States Code.See Violence Against Women: Law and Litigation § 5:40 and § 5:42(David Frazee et al. eds., 1997). The conference report included the ultimatefinding that
crimes of violence motivated by gender have a substantial adverse effecton interstate commerce, by deterring potential victims from traveling interstate,from engaging in employment in interstate business, and from transactingwith business, and in places involved, in interstate commerce . . . , bydiminishing national productivity, increasing medical and other costs, anddecreasing the supply of and the demand for interstate products.
H.R. Conf. Rep. No. 103-711, at 385 (1994), reprinted in 1994 U.S.C.C.A.N.1839, 1853 (emphasis added).

Congress additionally explained that "the cost" of gender-motivatedviolence "is staggering." S. Rep. No. 101-545, at 33 (1990). Oneexample of such gender-motivated violence is domestic violence, which aloneis estimated to cost employers "$3 to $5 billion annually due to absenteeismin the workplace." Women and Violence: Hearing Before the Committeeon the Judiciary, 101st Cong. 58 (1990) (statement of Helen K. Neuborne)(emphasis added). Furthermore, "estimates suggest that we spend $5to $10 billion a year on health care, criminal justice, and other socialcosts of domestic violence." S. Rep.No. 103-138, at 41. Congress noted"[i]t is not a simple matter of adding up the medical costs, or lawenforcement costs, but of adding up all of those expenses plus the costsof lost careers, decreased productivity, foregone educational opportunities,and long-term health problems." S. Rep. No. 101-545, at 33.

These monetary figures were accompanied by other evidence establishing thatgender-motivated violence has a substantial impact on interstate commerce:
Over 1 million women in the United States seek medical assistance each yearfor injuries sustained by their husbands or other partners. As many as 20percent of hospital emergency room cases are related to wife battering.
But the costs do not end there: woman abuse "has a devastating socialand economic effect on the family and the community." . . . It takesits toll in homelessness: one study reports that as many as 50 percent ofhomeless women and children are fleeing domestic violence. It takes itstoll in employee absenteeism and sick time for women who either cannot leavetheir homes or are afraid to show the physical effects of the violence.
Id. at 37 (footnote omitted).

Congress further found that the fear of violence "takes a substantialtoll on the lives of all women, in lost work, social, and even leisure opportunities."S. Rep. No. 102-197, at 38 (1991) (emphasis added). Thus, the legislatureexpressly recognized, as the Senate explained, that
women often refuse higher paying night jobs in service/retail industriesbecause of the fear of attack. Those fears are justified: the No. 1 reasonwhy women die on the job is homicide and the highest concentration of thosewomen is in service/retail industries . . . . 42 percent of deaths on thejob of women are homicides; only 12 percent of the deaths of men on thejob are homicides.
S. Rep. No., 103-138, at 54 n.70 (citations omitted).

Congress also explicitly found that the states refused or were unable todeal effectively with the problems created by gender-based violence. TheConference Report concluded that "bias and discrimination in the [state]criminal justice system[s] often deprives victims of crimes of violencemotivated by gender of equal protection of the law." H.R. Conf. Rep.No. 103-711, at 385. Numerous reports from the state supreme courts demonstratedto the Senate "that crimes disproportionately affecting women are oftentreated less seriously than comparable crimes against men," and theSenate concluded that "these reports provide overwhelming evidencethat gender bias permeates the [states'] court system." S. Rep. No.102-197, at 43-44. Congress further indicated that a uniform national approachto these problems was needed by noting that, while federal statutes currentlyprovide "a civil rights remedy" for gender-based violence in theworkplace, no such remedy existed for gender-based violence "committedon the street or in the home." H.R. Conf. Rep. No. 103-711, at 385.

The majority does not assert that these findings lack documentation or power.3Instead, it nitpicks them. See ante, at 847-50. For example, the majoritysuggests that because hearings were held by "three different Congresses"and some of the congressional findings were general, they do not deservedeference. Id. at 847-48. But in Hodel, the Supreme Court relied on numerousgeneral findings from five different Congresses to uphold the challengedstatute. 452 U.S. at 278-80 & n. 19, 101 S. Ct. 2352. Indeed, the HodelCourt specifically commended Congress for holding "extended hearingsduring which vast amounts of testimony and documentary evidence" werereceived, demonstrating "six years of the most thorough legislativeconsideration." Id. at 278-79, 101 S. Ct. 2352. Thus, the Supreme Courthas praised precisely the kind of full and extended congressional considerationthat the majority criticizes.

The majority also suggests that because the Senate found in 1993, a yearprior to the passage of VAWA and two years prior to issuance of the Lopezdecision, that gender-based violence "affects" (rather than "substantiallyaffects") interstate commerce and that VAWA therefore met the "modestthreshold required by the Commerce Clause," ante, at 850, none of Congress'sfindings merits deference. Given that the Supreme Court has repeatedly deferredto a congressional record containing evidence that an activity affectedinterstate commerce without any specific findings as to the degree of thiseffect, see, e.g., McClung, 379 U.S. at 299, 85 S. Ct. 377; Heart of AtlantaMotel, 379 U.S. at 246, 85 S. Ct. 348, and that in Lopez the Court reiteratedthat "Congress normally is not required to make formal findings asto the substantial burdens that an activity has on interstate commerce,"Lopez, 514 U.S. at 562, 115 S. Ct. 1624, this contention is a makeweightat best.4 In fact, a panel of this court, which included two members oftoday's majority, recently relied on congressional committee reports touphold a federal statute in the face of a post-Lopez Commerce Clause challengeeven though those reports-and the statute itself-found merely that the regulatedactivity affected (not substantially affected) interstate commerce. SeeHoffman v. Hunt, 126 F.3d 575, 587 (4th Cir. 1997) (citing H.R. Conf. Rep.No. 103-488 at 7-8 (1994), reprinted in 1994 U.S.C.C.A.N. 724, 724-25);Freedom of Access to Clinic Entrances Act of 1994, Pub. L. No. 103-259,§ 2, 108 Stat. 694 (1994); see also Terry v. Reno, 101 F.3d 1412, 1416(D.C. Cir. 1996), cert. denied, 520 U.S. 1264, 117 S. Ct. 2431, 138 L.Ed.2d193 (1997).

Moreover, the majority's critique of the findings here ignores one of thosefindings' most significant characteristics. A year after the Senate Reportthat the majority faults, Congress enacted VAWA upon receipt from the ConferenceCommittee of findings (which were originally included in the statute itself)that gender-based violence has a "substantial adverse effect on interstatecommerce." H.R. Conf. Rep. No. 103-711, at 385 (emphasis added). ThatCongress made these express findings prior to the issuance of Lopez, whenthe importance of congressional findings that regulated activity has a "substantial"effect on interstate commerce had not yet been explicated, plainly demonstratesjust how strong Congress found the link between gender-based violence andinterstate commerce to be.

The majority further claims that findings and evidence of the effects ofgender-based violence on the national economy are irrelevant because theydo not "describe the effects of gender-motivated violence on interstatecommerce." Ante, at 850. The Commerce Clause, however, pertains tomore than just interstate commerce; it gives Congress a plenary power "[t]oregulate Commerce with foreign Nations, and among the several States, andwith the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. Thisbroad provision of authority encompasses the power to regulate problemsaffecting the national economy as a whole. The Commerce Clause does notrender "the nation powerless to defend itself against economic forcesthat Congress decrees inimical or destructive of the national economy. Ratherit is an affirmative power commensurate with national needs." NorthAmerican Co. v. SEC, 327 U.S. 686, 705, 66 S. Ct. 785, 90 L.Ed. 945 (1946).Thus, the mere fact that a statute addresses a problem affecting the nationaleconomy in general, rather than interstate commerce in particular, doesnot deprive Congress of the authority to enact it under the Commerce Clause.

The majority eventually concedes that VAWA's "legislative record"demonstrates "that violence against women is a sobering problem . .. that . . . ultimately does take a toll on the national economy" and"supports an inference that some portion of this violence, and thetoll it exacts, is attributable to gender animus." Ante, at 852. Nonetheless,the majority holds that Congress exceeded its Commerce Clause authorityin enacting VAWA. I cannot agree.

Proper application of the mandated rational basis standard of judicial reviewsimply does not permit the result reached by the majority. That standardrequires us to answer a single question: did Congress have a rational basisfor finding, as it expressly did, that serious violence motivated by genderanimus has "a substantial adverse affect on interstate commerce bydeterring potential victims from traveling interstate, from engaging inemployment in interstate commerce, and from transacting with business, andin places involved, in interstate commerce . . . , by diminishing nationalproductivity, increasing medical and other costs, and decreasing the supplyof and the demand for interstate products." H.R. Conf. Rep. No. 103-711,at 385. Congress so found only after four years of hearings and considerationof massive amounts of testimony, statistics, and other evidence. Analysisof this legislative record unquestionably demonstrates that each one ofCongress's findings as to the substantial, deleterious impact of gender-basedviolence on interstate commerce is grounded in abundant evidence. In fact,it is hard to envision more careful legislative consideration, a more completelegislative record, or more amply supported legislative findings. In lightof the voluminous, persuasive record and the extensive deliberation supportingSubtitle C, my independent evaluation of Congress's "legislative judgment,"Lopez, 514 U.S. at 563, 115 S. Ct. 1624, compels me to conclude that Congresshad a rational basis for finding that gender-based violence substantiallyaffects interstate commerce.5
Supreme Court precedent well supports this conclusion. Certainly legislatorscould rationally find that the impact of gender-motivated violence on interstatecommerce was at least as substantial as the impact of growing wheat forhome consumption, see Wickard v. Filburn, 317 U.S. 111, 125, 63 S. Ct. 82,87 L.Ed. 122 (1942) ("even if . . . activity be local and though itmay not be regarded as commerce, it may still, whatever its nature, be reachedby Congress if it exerts a substantial economic effect on interstate commerce"),or racial discrimination, see McClung, 379 U.S. at 304, 85 S. Ct. 377 (Congresshad a "rational basis" for believing that racial discriminationby local (non-chain) restaurants located in a single state affected interstatecommerce), or local loansharking, see Perez, 402 U.S. at 156, 91 S. Ct.1357 (Congress rationally concluded that local loansharking affects interstatecommerce because it supports "organized crime," which "exactsmillions from the pockets of people"). As the Supreme Court explainedin Heart of Atlanta Motel, "if it is interstate commerce that feelsthe pinch, it does not matter how local the operation which applies thesqueeze." 379 U.S. at 258, 85 S. Ct. 348 (internal citation omitted).

Given Congress's clear finding that gender-based violence has a substantialeffect on interstate commerce, the compelling evidence in the legislativerecord supporting that finding, and the fact that the challenged statutein no way interferes with state action on matters of traditional state concern,it seems to me that a court can only uphold Subtitle C. Significantly, everycourt to consider the question, except the majority and the court below,has reached the same conclusion. See Liu v. Striuli, 36 F. Supp.2d 452,1999 WL 24961 (D.R.I. 1999); Ziegler v. Ziegler, 28 F. Supp.2d 601 (E.D.Wash. 1998); Crisonino v. New York City Housing Auth., 985 F. Supp. 385(S.D. N.Y. 1997); Anisimov v. Lake, 982 F. Supp. 531 (N.D. Ill. 1997); Seatonv. Seaton, 971 F. Supp. 1188 (E.D. Tenn. 1997); Doe v. Hartz, 970 F.Supp.1375 (N.D. Iowa 1997), rev'd on other grounds, 134 F.3d 1339 (8th Cir. 1998);Doe v. Doe, 929 F. Supp. 608 (D. Conn. 1996); Timm v. DeLong, No. 8:98CV43(D. Neb. June 22, 1998); Mattison v. Click Corp. of America, Inc., Civ.A.No. 97-CV-2736, 1998 WL 32597 (E.D. Pa. Jan. 27, 1998).6
C.
The length and the prolixity of the majority opinion fail to mask the deepflaws in its rationale for invalidating Subtitle C. The majority createsan unprecedented new rule of law and relies upon fundamentally unsound notionsof both the judicial function and the demands of federalism.

1.
Perhaps the most obvious of the majority's errors is its creation of a newrule that confines Congress's power under the Commerce Clause to eitherthe direct regulation of economic activities or the enactment of statutescontaining jurisdictional elements. This new rule depends upon a distortedview of Lopez and a cavalier disregard for the Supreme Court's other CommerceClause precedents. Moreover, the majority's contention that this new rulejustifies its holding demonstrates a serious misunderstanding of the statutebefore us. Under the governing case law, including Lopez, Congress clearlyhad the authority to enact Subtitle C under the Commerce Clause.

The majority cites Lopez as the source for its rule that Commerce Clauselegislation is unconstitutional unless it regulates economic activitiesor contains a jurisdictional element. Lopez, the majority contends, "expresslyheld that because the Gun-Free School Zones Act 'neither regulate[d] a commercialactivity nor contain[ed] a requirement that the possession be connectedin any way to interstate commerce,'" ante, at 831-32 (quoting Lopez,514 U.S. at 551, 115 S. Ct. 1624) (emphasis added), "it exceed[ed]the authority of Congress 'to regulate . . . Commerce among the severalStates,'" id. (quoting U.S. Const. art. I, § 8, cl. 3). See alsoante, at 833-37.

Notwithstanding the frequency and vehemence with which the majority makesthis assertion, it constitutes a fundamental mischaracterization of theSupreme Court's decision. To be sure, Lopez held that the GFSZA did notregulate a "commercial activity" or "contain[] a requirement[i.e., a jurisdictional element] that the possession be connected in anyway to interstate commerce." Lopez, 514 U.S. at 551, 115 S. Ct. 1624.But the Lopez Court never held that the challenged statute exceeded Congress'sauthority because it did not fit into one of these categories. If the LopezCourt had struck down the GFSZA for these reasons alone, its opinion wouldhave ended after discussion of these two issues at 514 U.S. at 562, 115S. Ct. 1624. Instead, the Court continued-for an additional six pages-toevaluate whether one could rationally conclude that possession of a gunin a school zone substantially affected interstate commerce. Lopez, 514U.S. at 562-68, 115 S. Ct. 1624. The Court only invalidated the GFSZA afterpointing out the lack of congressional findings establishing a substantialeffect on interstate commerce, after noting that the statute displaced statepolicy choices in an area of traditional state concern, and after consideringand rejecting the Government's arguments.

A new rule restricting Congress's power under the Commerce Clause to regulatingeconomic activity or enacting statutes containing jurisdictional elementsundeniably conflicts with the pre-existing Commerce Clause jurisprudencethat the Lopez Court approved. The Lopez Court quoted Wickard v. Filburn'sfamous teaching that "even if appellee's activity be local and thoughit may not be regarded as commerce, it may still, whatever its nature, bereached by Congress if it exerts a substantial economic effect on interstatecommerce." 317 U.S. at 125, 63 S. Ct. 82 (emphasis added), quoted inLopez, 514 U.S. at 556, 115 S. Ct. 1624. That statement simply cannot bereconciled with the majority's new rule.

Similarly, in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), which was also approved in Lopez, the SupremeCourt explained that
[t]he fundamental principle is that the power to regulate commerce is thepower to enact "all appropriate legislation" for "its protectionand advancement." . . . That power is plenary and may be exerted toprotect interstate commerce "no matter what the source of the dangerswhich threaten it."
Id. at 36-37, 57 S. Ct. 615 (emphasis added) (citations omitted); see alsoHeart of Atlanta Motel, 379 U.S. at 258, 85 S. Ct. 348 ("The powerof Congress to promote interstate commerce also includes the power to regulatethe local incidents thereof, including local activities in both the Statesof origin and destination, which might have a substantial and harmful effectupon that commerce." (emphasis added)). It is this power- the powerto protect, advance, and promote commerce-that Congress invoked in passingSubtitle C. See also Goetz v. Glickman, 149 F.3d 1131, 1137 (10th Cir. 1998)(rejecting argument that "Congress' commerce power is limited to restrictingor prohibiting an activity," concluding "'[i]t is now indisputablethat the power to regulate interstate commerce includes the power to promoteinterstate commerce'") (quoting United States v. Frame, 885 F.2d 1119,1126 (3d Cir. 1989)).

In arguing that Subtitle C is unconstitutional because it does not directlyregulate economic activity, the majority slights these principles and ignoresthe expressly-stated purpose of the statute: "to promote . . . activitiesaffecting interstate commerce by establishing a Federal civil rights causeof action for victims of crimes of violence motivated by gender." 42U.S.C. § 13981(a) (emphasis added). The legislative record identifiesthese "activities" as including interstate travel, access to healthcare services, employment in general, the employment of victims of gender-basedviolence in particular, and-more particularly still-the employment of suchindividuals in certain sectors of the economy. In Subtitle C, Congress legislatedagainst gender-based violence under the Commerce Clause as a means of "protectionand advancement" of these and other economic activities. See Jones& Laughlin, 301 U.S. at 36-37, 57 S. Ct. 615.

The fact that in enacting Subtitle C Congress was also legislating againsta moral wrong renders the enactment "no less valid" under theCommerce Clause. See Heart of Atlanta Motel, 379 U.S. at 257, 85 S. Ct.348. That a statute was not explicitly meant "to increase the grossnational product by removing a barrier to free trade, but rather to protectpersonal safety and property rights, is irrelevant [because] Congress canregulate interstate commerce for any lawful motive." United Statesv. Soderna, 82 F.3d 1370, 1374 (7th Cir. 1996) (Posner, C.J.); see alsoUnited States v. Weslin, 156 F.3d 292, 296 (2d Cir. 1998) ("it doesnot matter whether Congress's motive in enacting the statute was commercial,noncommercial, or mixed. For Congress may regulate interstate commerce forany purpose not affirmatively forbidden by the Constitution").

In sum, established precedent renders the majority's contention that gender-basedviolence itself is not an economic activity simply beside the point. Inan effort to escape this precedent, the majority suggests that Lopez heraldsa new era of Commerce Clause jurisprudence in which courts will fly speckcongressional judgments, striking them down if they do not regulate a sufficientlyeconomic activity or do not contain a jurisdictional element. That is certainlynot what the Lopez Court said. As an inferior court, we must follow whatthe Supreme Court says, not what we believe, or hope, its opinions foreordain.

The Lopez Court said that the GFSZA "plow[ed] thoroughly new groundand represent[ed] a sharp break with the long-standing pattern of federalfirearms legislation," 514 U.S. at 563, 115 S. Ct. 1624 (internal quotationmarks omitted), indicating that it was enunciating what two members of thefive person majority expressly stated was a "limited holding,"id. at 568, 115 S. Ct. 1624 (Kennedy, J., concurring). Of course, the LopezCourt did refuse to make an "additional expansion" of Congress'scommerce power to uphold the GFSZA, and it clarified that a regulated activitymust "substantially" affect interstate commerce. But as the majorityitself apparently acknowledges, ante, at 854, the Lopez Court did not overrulea single Commerce Clause precedent. Nor, as detailed within, see infra,at 922-23, did it abandon the "rational basis" test. Id. at 557-68,115 S. Ct. 1624; see also United States v. Hartsell, 127 F.3d 343, 348 n.1(4th Cir. 1997) (Lopez is not "a radical sea change which invalidatesthe decades of Commerce Clause analysis"); United States v. Wright,117 F.3d 1265, 1269 (11th Cir. 1997) ("Lopez did not alter our approachto determining whether a particular statute falls within the scope of Congress'sCommerce Clause authority"), vacated in part on other grounds, 133F.3d 1412 (11th Cir. 1998); United States v. Wilson, 73 F.3d 675, 685 (7thCir. 1995) (the Lopez Court "reaffirmed, rather than overturned, theprevious half century of Commerce Clause precedent").

Rather, in describing the history of the Court's Commerce Clause jurisprudence,Lopez forthrightly embraced the modern expansive view of Congress's powerunder the Commerce Clause, and eschewed the more restrictive view of "commerce"that relied on formalistic distinctions. Id. at 555, 115 S. Ct. 1624. JusticeKennedy's concurrence specifically warned us not to seek "mathematicalor rigid formulas" for deciding the constitutionality of statutes underthe Commerce Clause. 514 U.S. at 573, 115 S. Ct. 1624 (Kennedy, J., concurring)(citing Wickard, 317 U.S. at 123 n.24, 63 S. Ct. 82). The concurrence alsocautioned against a strict requirement that the regulated activity itselfbe connected with commerce, noting that the history of the Supreme Court'sCommerce Clause jurisprudence demonstrates the "imprecision of content-basedboundaries used without more to define the limits of the Commerce Clause."Id. at 574, 115 S. Ct. 1624 (Kennedy, J., concurring). Yet the majority'snew rule mandates the use of precisely such rigid requirements and "content-basedboundar[ies]."

The majority's attempt to distinguish the case at hand from Hoffman, 126F.3d at 575, in which this court recently held the Freedom of Access toClinic Entrances Act (FACE) to be within Congress's Commerce Clause authority,tellingly demonstrates the problems with such formalistic rules. FACE containsno jurisdictional element and, as we pointed out, "the activity regulated"was "not itself economic or commercial." Id. at 587. Rather theregulated conduct, like the activity regulated by Subtitle C, was identifiedas the "use of force" or the "threat of force" thatsufficiently affects interstate commerce. Id. Thus, FACE patently does notsatisfy the majority's new rule, which restricts Congress's Commerce Clauseauthority to enactment of statutes with jurisdictional elements or regulationsof economic activity.

Implicitly recognizing this, the majority slips in an exception to its rulefor regulation of non-economic activity that has a "meaningful connection"with "specific" economic activities. Ante, at 834. It claims that,unlike protests at abortion clinics, gender-based violence lacks such aconnection. Id. But Congress expressly found that gender-based violencedoes affect specific economic activities, e.g., the participation of itsvictims in the labor market and the provision of healthcare services, andthat the connection of gender-based violence to these activities is "meaningful"both in particular instances and in the aggregate.

The majority's rule thus forces it to contend that these economic activitiesare insufficiently "specific" and that the effect of gender-basedviolence upon such activities is insufficiently "direct." Id.at 834, 837. Such specificity and directness requirements find no supportin the governing "substantially affects" test, however. Indeed,the majority's requirement that the activity be "specific" conflictswith that test; it suggests that once an activity affecting commerce becomeswide-spread enough to be "general," its effects somehow becomeinsufficiently "substantial" to justify an exercise of the CommerceClause power. Moreover, as noted in Lopez, the Supreme Court "departedfrom the distinction between 'direct' and 'indirect' effects on interstatecommerce" in 1937 in NLRB v. Jones & Laughlin, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), and has never returned to such distinctionsbecause they "artificially [] constrain[] the authority of Congressto regulate interstate commerce." Lopez, 514 U.S. at 555-56, 115 S.Ct. 1624. The majority opinion amply proves the wisdom of the Lopez Court'srejection of such rigid and technical tests for determining constitutionalityunder the Commerce Clause; as the majority's difficulty with its own formulashows, such tests lead only to a proliferation of dubious distinctions.

The majority's new rule also conflicts with the Supreme Court's specificholding, subsequent to Lopez, that an activity need not be commercial incharacter in order to come within the scope of the Commerce Clause. Justtwo terms ago, in Camps Newfound/ Owatonna, Inc. v. Town of Harrison, 520U.S. 564, 117 S. Ct. 1590, 137 L.Ed.2d 852 (1997), the Court held that astate law adversely affecting a nonprofit camp violated the dormant CommerceClause. At the outset of its analysis the Camps Court noted that the "reasoning"of cases involving "Congress' affirmative Commerce Clause powers"also applied in the context of the dormant Commerce Clause. Id. at 1597.The Court then rejected arguments made by those defending the statute "thatthe dormant Commerce Clause is inapplicable [] because the campers are not'articles of commerce' or more generally that interstate commerce is notat issue here." Id. The critical inquiry was not whether campers constituted"articles of commerce" or whether attending camp constituted aneconomic activity; rather, the challenged statute implicated the CommerceClause because the services provided by the camp "clearly ha[d] a substantialeffect on interstate commerce." Id.

Not only is the majority's new rule without precedent, the premises underlyingthat rule are seriously misconceived. The majority contends that gender-basedviolence is "a type of crime relatively unlikely to have any economiccharacter at all." Ante, at 834. See also id. at 835. This argumentonly makes sense if one utterly ignores the effects of gender-based violenceand instead focuses entirely on the motives of its perpetrators. There is,however, no reason to define the character of a crime by reference onlyto the actor's motive. Such reasoning leads to incongruous results. Forexample, arson is clearly a property crime, but on the majority's rationaleit would not be considered as such in cases where the perpetrator had nointerest in destroying anything, but only wanted to see the flames.

Moreover, the majority's implicit claim that gender-based harm to personsis insufficiently economic to be regulable under the commerce power involvesa disturbing anomaly, as recent events demonstrate. A few months ago inBaltimore, an apparent victim of gender-based violence was found lockedin the trunk of a car, which had been set on fire. The majority's approachwould appear to give Congress the authority, under the Commerce Clause,to provide a remedy for the damage done to the car, but not for the victim'smedical expenses, lost wages, or other damages.7
In sum, the majority has created a new and troubling rule out of whole cloth.Lopez cannot be fairly read to restrict congressional authority under theCommerce Clause to regulation of economic activities and enactment of statutescontaining a jurisdictional element. Indeed, Supreme Court precedent, includingLopez, rejects the use of such rigid, formalistic rules. The core teachingof Lopez remains true to the Court's prior and subsequent precedent: Congressmust ensure that legislation enacted pursuant to its Commerce Clause authorityreaches only activities that "substantially affect interstate commerce,"and the courts must ensure that Congress has performed this constitutionalobligation in a rational manner.
2.
The majority's second fundamental mistake results from its absolute refusalto recognize our restricted role as judges. Due to this error, the majorityfails to apply the correct standard of judicial review and to give properdeference to the legislative judgment challenged here.

The Constitution creates a government of separated powers, in which legislativeauthority is allocated to Congress. Courts can, of course, refuse to giveeffect to an otherwise properly enacted law if they find it inconsistentwith the Constitution. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-78,2 L.Ed. 60 (1803). But to prevent this mighty judicial power from engulfingand ultimately eliminating the legislative powers reserved to Congress,the Supreme Court has established that acts of Congress are entitled toa strong presumption of constitutionality. See Flemming v. Nestor, 363 U.S.603, 617, 80 S. Ct. 1367, 4 L.Ed.2d 1435 (1960).

Chief Justice Rehnquist, the author of the principal opinion in Lopez, haselaborated upon this rule of judicial restraint, noting that because "[j]udgingthe constitutionality of an Act of Congress is properly considered the gravestand most delicate duty that this Court is called upon to perform,"constitutional review of a statute begins with "deference" tothe "duly enacted and carefully considered decision of a coequal andrepresentative branch of our Government." Walters v. National Ass'nof Radiation Survivors, 473 U.S. 305, 319, 105 S. Ct. 3180, 87 L.Ed.2d 220(1985) (internal quotation marks omitted). The Chief Justice has furtherexplained that such deference is only appropriate because a court "musthave due regard to the fact that [it] is not exercising a primary judgmentbut is sitting in judgment upon those who also have taken the oath to observethe Constitution and who have the responsibility for carrying on government."Rostker v. Goldberg, 453 U.S. 57, 64, 101 S. Ct. 2646, 69 L.Ed.2d 478 (1981)(internal quotation marks omitted) (emphasis added). Justice Kennedy, concurringin Lopez, similarly noted that "the sworn obligation to preserve andprotect the Constitution in maintaining the federal balance" belongs"in the first and primary instance" to the legislative and executivebranches, not the judiciary. Lopez, 514 U.S. at 577, 115 S. Ct. 1624 (Kennedy,J., concurring) (emphasis added).

As the opening words of its opinion demonstrate, the majority steadfastlyrefuses to recognize the constraints placed upon the judiciary by the separationof powers. In purporting to act on behalf of "We the People" instriking Subtitle C-an act of the people's duly elected legislature-themajority seeks to augment its limited judicial authority with a representativeauthority that it does not in fact possess. Indeed, the majority's resortto this kind of rhetoric constitutes an implicit acknowledgment that anunelected, unaccountable federal court could not, on its own power, properlyinvalidate Subtitle C.

Although the majority attempts to echo the Lopez Court by invoking "foundational"principles to justify its holding, the Lopez Court expressly recognizedthat maintenance of the proper balance of power requires respect for morethan one such principle: "Just as the separation and independence ofthe coordinate branches of the Federal Government serves to prevent theaccumulation of excessive power in any one branch, a healthy balance ofpower between the States and the Federal Government will reduce the riskof tyranny and abuse from either front." Lopez, 514 U.S. at 552, 115S. Ct. 1624 (quoting Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S. Ct.2395, 115 L.Ed.2d 410 (1991)). Thus, while the Supreme Court in Lopez recognizedthat both separation of powers and federalism are foundational or firstprinciples, the majority utterly ignores the former in an effort to elevatethe latter. Compare ante, at 825-26, with Lopez, 514 U.S. at 552, 115 S.Ct. 1624.

The majority manifests its lack of respect for the separation of powersby refusing to apply the rational basis standard of review, even thoughit assertedly recognizes that this standard controls here. See ante, at857-58.8 Indeed, the majority complains about the "incessant invocations"of this standard by Brzonkala and the Government. Ante, at 857. It seemsnatural, however, to refer frequently to the governing standard of judicialreview in a case, like this one, in which application of that standard iscritical. Moreover, the parties do no more than quote and follow the SupremeCourt, which has consistently (not to say incessantly) invoked preciselythis standard. See, e.g., Preseault, 494 U.S. at 17, 110 S. Ct. 914 (deferenceto congressional findings of sufficient effect on interstate commerce isrequired if there is "any rational basis for such a finding")(emphasis added); Hodel, 452 U.S. at 277, 101 S. Ct. 2352 (when "Congresshas determined that an activity affects interstate commerce, the courtsneed only inquire whether the finding is rational") (emphasis added);McClung, 379 U.S. at 303-04, 85 S. Ct. 377 (after a court determines thatCongress had "a rational basis for finding a chosen regulatory schemenecessary to the protection of commerce" the court's "investigationis at an end") (emphasis added).

Although the Lopez Court did clarify that activity must "substantially"affect interstate commerce in order for Congress to regulate it under theCommerce Clause, the Court did not in any way retreat from the well-establishedrational basis standard of judicial review. To the contrary, the Lopez Courtexplained that since NLRB v. Jones & Laughlin, 301 U.S. 1, 57 S. Ct.615, 81 L.Ed. 893 (1937)-which both recognized a "greatly expanded"view of Congress's power under the Commerce Clause and warned that thispower is "subject to outer limits"-the Supreme Court "hasheeded this warning and undertaken to decide whether a rational basis existedfor concluding that a regulated activity sufficiently affected interstatecommerce." Lopez, 514 U.S. at 556-57, 115 S. Ct. 1624 (emphasis added)(citing Hodel, Perez, McClung, and Heart of Atlanta Motel).

In refusing to apply the rational basis standard, the majority stands alone.Every one of our sister circuits to consider a post-Lopez Commerce Clausechallenge, as well as this court itself in an earlier case, has respectedand applied the rational basis standard to uphold a wide range of federalstatutes. See United States v. Franklyn, 157 F.3d 90, 93 (2d Cir.) cert.denied, -- U.S. --, 119 S. Ct. 563, --L.Ed.2d -- (1998) (upholding 18 U.S.C.§ 922(o), which criminalizes the possession or transfer of handguns);United States v. Cardoza, 129 F.3d 6, 11-13 (1st Cir. 1997) (upholding YouthHandgun Safety Act); Hoffman v. Hunt, 126 F.3d 575, 584-88 (4th Cir. 1997)(upholding Freedom of Access to Clinic Entrances Act (FACE)); United Statesv. Knutson, 113 F.3d 27 (5th Cir. 1997) (upholding 18 U.S.C. § 922(o)criminalizing the possession or transfer of machine guns); United Statesv. Parker, 108 F.3d 28, 29-31 (3d Cir.) (reversing district court and upholdingChild Support Recovery Act), cert. denied, -- U.S. --, 118 S. Ct. 111, 139L.Ed.2d 64 (1997); United States v. Olin Corp., 107 F.3d 1506, 1509-11 (11thCir. 1997) (upholding CERCLA); United States v. Bramble, 103 F.3d 1475,1482 (9th Cir. 1996) (upholding Eagle Protection Act); Terry v. Reno, 101F.3d 1412, 1415-18 (D.C. Cir. 1996) (upholding FACE), cert. denied, 520U.S. 1264, 117 S. Ct. 2431, 138 L.Ed.2d 193 (1997); Proyect v. United States,101 F.3d 11, 12-14 (2d Cir. 1996) (upholding Comprehensive Drug Abuse Preventionand Control Act); United States v. McHenry, 97 F.3d 125, 128-29 (6th Cir.1996) (upholding the Anti Car Theft Act), cert. denied, 519 U.S. 1131, 117S. Ct. 992, 136 L.Ed.2d 873 (1997); United States v. Hampshire, 95 F.3d999, 1001-04 (10th Cir. 1996) (upholding Child Support Recovery Act), cert.denied, 519 U.S. 1084, 117 S. Ct. 753, 136 L.Ed.2d 690 (1997); United Statesv. Kenney, 91 F.3d 884, 889-91 (7th Cir. 1996) (upholding 18 U.S.C. §922(o)); United States v. Dinwiddie, 76 F.3d 913, 920 (8th Cir.) (upholdingFACE), cert. denied, -- U.S. --, 117 S. Ct. 613, 136 L.Ed.2d 538 (1996).

Because it refuses to apply the rational basis standard, the majority failsto give appropriate deference to the abundant and well-supported congressionalfindings demonstrating that gender motivated violence has the requisiteeffect on interstate commerce. The majority itself acknowledges that "ahealthy degree of judicial deference to reasonable legislative judgmentsof fact" is appropriate, but then asserts that the parties' invocationof rational basis review contemplates a "deference indistinguishablefrom judicial abdication," and refuses to defer in any way to the compellingfindings here. Ante, at 857. Even if the parties have oversold the necessarydeference, and that is not clear to me, a court must nonetheless defer torational congressional findings. This is required because we are, as theChief Justice explained, "not exercising a primary judgment,"Rostker, 453 U.S. at 64, 101 S. Ct. 2646, but rather reviewing the "carefullyconsidered decision of a co- equal and representative branch of our Government,"Walters, 473 U.S. at 319, 105 S. Ct. 3180. Deference to these legislativejudgments, not disregard of them, constitutes the "paradigm of judicialrestraint." FCC v. Beach Communications, Inc., 508 U.S. 307, 314, 113S. Ct. 2096, 124 L.Ed.2d 211 (1993). Compare ante, at 889-93 (Wilkinson,C.J., concurring).

Congressional findings are significant, not for some formalistic or proceduralreason, cf. ante, at 844-50, but because they clearly state Congress's contemporaneousjudgment as to the need, scope, and basis for the law that it is enacting.The statute itself articulates the existence of a congressional judgmentof constitutionality, while findings articulate the content of that judgment.We defer to the former out of respect for the primary legislative powerand sworn responsibility of Congress under the constitution, Rostker, 453U.S. at 64, 101 S. Ct. 2646, and we grant an additional measure of deferenceto the latter in recognition of Congress's status as a coequal, deliberativebody whose determinations are presumed to be rational, Walters, 473 U.S.at 319, 105 S. Ct. 3180. Where Congress has supported a statute with anexplicitly articulated rationale asserting its constitutionality, therefore,invalidation of the statute constitutes not just the correction of a possiblyinadvertent congressional overestimate of its competence, but rather a directrepudiation of Congress's full authority.

In Lopez, of course, the Court had no congressional findings to which todefer. But nothing in Lopez suggests that when Congress has considered amatter and made a rational finding of constitutionality-let alone an explicitfinding based on a massive congressional record, as in this case-a courtshould not defer to that finding. On the contrary, the Lopez Court notedthat consideration of congressional findings is "of course" partof the proper judicial inquiry. Lopez, 514 U.S. at 562, 115 S. Ct. 1624.In support of that statement, the Lopez Court cited Preseault, 494 U.S.at 17, 110 S. Ct. 914, in which the Court expressly explained that "wemust defer to a congressional finding that a regulated activity affectsinterstate commerce if there is any rational basis for such a finding."(internal quotation marks omitted).

Nonetheless, the majority suggests that the complete absence of congressionalfindings did not in any way impact the Lopez Court's decision to invalidatethe GFSZA. See ante, at 845-50. The majority is almost forced to take thisposition because, if congressional findings are, as I believe, important,then the stunning lack of any findings supporting the GFSZA presents a formidableproblem for the majority's position. In contrast to Subtitle C, in whichCongress compiled an enormous factual record and left nothing to guess work,in the GFSZA Congress left everything-the necessity for the legislation,the rationale supporting it, the connection between gun possession nearschools and interstate commerce, even the source of Congress's power-toconjecture.

The GFSZA was enacted as part of the Crime Control Act of 1990, Pub. L.No. 101-647, § 1702, 104 Stat. 4844. The House Report on the CrimeControl Act states its purpose in the most general terms, as provision of"a legislative response to various aspects of the problem of crimein the United States." H.R.Rep. No. 101-681(I), at 69 (1990), reprintedin 1990 U.S.C.C.A.N. 6472, 6473. This report does not even mention the GFSZA,let alone explain how possession of a gun within 1000 feet of a school affectsinterstate commerce. Congress held a single subcommittee hearing on GFSZA;witnesses testified as to "tragic instances of gun violence in ourschools," but no one mentioned "the effect of such violence uponinterstate commerce"-not even a floor statement attempted to explainthe constitutional basis for the statute. United States v. Lopez, 2 F.3d1342, 1359 (5th Cir. 1993), aff'd, 514 U.S. 549, 115 S. Ct. 1624, 131 L.Ed.2d626 (1995).

The lack of congressional findings served as the justification for the FifthCircuit's refusal to uphold the GFSZA. Id. Although the Supreme Court didnot affirm the Fifth Circuit on this basis, the Court did find the lackof legislative findings significant. First, the Court remarked on the Government's"conce[ssion] that '[n]either the statute nor its legislative historycontain[s] express congressional findings.'" Lopez, 514 U.S. at 562,115 S. Ct. 1624 (quoting Brief for United States at 5-6). Then the Courtnoted that although such findings "normally [are] not required,"they do assist a court. Id. Such findings, the Court explained, "enable[a court] to evaluate the legislative judgment that the activity in questionsubstantially affected interstate commerce, even though no substantial effectwas visible to the naked eye." Id. at 563, 115 S. Ct. 1624.

Nevertheless, the majority maintains that the Lopez Court's "lucidrecitation" of the "arguments" made by the Government anddissent in that case eliminated any need for congressional findings. Ante,at 846. Alternatively, the majority claims that if the Lopez Court's decision"turned on" the lack of congressional findings, it could and wouldhave consulted findings that Congress made after the statute had been challenged.Id.

These contentions present multiple problems. If the Supreme Court trulyregarded the lack of congressional findings in the GFSZA to be of no import,why did the Court comment on the assistance such legislative findings providethe judiciary? See Lopez, 514 U.S. at 562, 115 S. Ct. 1624. Why did theCourt note the lack of findings in the GFSZA? Id. Why did the Court pointout that the Government did "not rely upon[] subsequent [congressional]findings as a substitute for the absence of findings in the first instance?"Id. at 563 n. 4, 115 S. Ct. 1624 (emphasis added). And why did the Courtalso hold that it would not import "previous findings to justify"the GFSZA? Id. at 563, 115 S. Ct. 1624.

As indicated above, supra, at 923, congressional findings submitted uponpassage of legislation simply are not the same as the arguments of lawyers,even government lawyers, after a law has been challenged in the courts.For example, in United States v. Bass, 404 U.S. 336, 92 S. Ct. 515, 30 L.Ed.2d488 (1971), the government lawyers argued that in the Omnibus Crime Controland Safe Streets Act of 1968, Pub.L. No. 90-351, § 1202(a), 82 Stat.197, 236 (1968), Congress validly exercised its Commerce Clause authorityto criminalize possession of a firearm by a felon. Neither the statutorylanguage nor any Congressional findings so stated. For this reason, theSupreme Court refused to "adopt this broad reading" of the statuteand instead construed it to require a connection with interstate commerce.Id. at 339, 92 S. Ct. 515. However, the Court expressly reserved the questionof whether the result would be different if Congress had made appropriatefindings, noting that "[i]n light of our disposition of the case, wedo not reach the question whether, upon appropriate findings, Congress canconstitutionally punish the 'mere possession' of firearms." Id. n.4, 92 S. Ct. 515 (emphasis added).

In sum, the Supreme Court has directed that, in deciding whether a statutewas properly enacted under the Commerce Clause, a court must apply a rationalbasis standard of judicial review, deferring-not abdicating but deferring-torationally based congressional findings that the regulated activity substantiallyaffects interstate commerce. This means that when Congress makes findings,a court carefully examines them, but only to determine if they have a rationalbasis. The sole ground for rejecting legislative findings is, therefore,that they lack any rational basis.9

In order to strike down Subtitle C, the majority must ignore our restrictedrole in assessing a challenge to Congress's Commerce Clause power, refuseto follow the prescribed rational basis standard of judicial review, anddeny the deference due to Congress's clear and amply supported findings.
3.
Finally, the majority errs by profoundly misunderstanding the nature andextent of the proper limits imposed by federalism concerns on Congress'scommerce power. Whether considered as part of the substantially affectstests, see Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995), or as a separateinquiry, see New York v. United States, 505 U.S. 144, 112 S. Ct. 2408, 120L.Ed.2d 120 (1992), federalism concerns do not justify invalidation of SubtitleC. The Founders provided Congress with a broad and far-ranging power toregulate interstate commerce, but they restrained that power by locatingit within an explicit constitutional system that depends upon two spheresof government-state and federal-to represent the interests of, and be accountableto, the people. The majority disregards this careful scheme of structurallimitations and seeks to place additional and unprecedented constraintson Congress. Subtitle C, which legislates in an area of traditional congressionalexpertise, and does not interfere with or usurp any state authority, fitscomfortably within the proper federalism-based limits on Congress's CommerceClause power.

The Constitution allocates to Congress the power "to regulate Commercewith foreign Nations, and among the several States, and with the IndianTribes." U.S. Const. art. 1, § 8, cl. 3. The Founders intendedthis power to be extensive in order to remedy the "defect of powerin the existing Confederacy to regulate the commerce between its severalmembers." The Federalist No. 42, at 267 (James Madison) (Clinton Rossitered., 1961). From the outset, the Supreme Court recognized the extent ofthis power, holding it "complete in itself," and to "be exercisedto its utmost extent." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196,6 L.Ed. 23 (1824). This statement of Chief Justice Marshall in Ogden is"understood now as an early and authoritative recognition that theCommerce Clause grants Congress extensive power and ample discretion todetermine its appropriate exercise." Lopez, 514 U.S. at 568, 115 S.Ct. 1624 (Kennedy, J., concurring). At the same time, however, the Foundersestablished judicially-enforceable limits on Congress's commerce authority.

The most important of these, and the one at issue here, is the limit arisingfrom the structure of the government established by the Constitution-a federalgovernment composed of sovereign states. In Ogden itself, Chief JusticeMarshall recognized that the central structural concern in Commerce Clausecases is the capacity of different government entities to represent theinterests of the people:
If, as has always been understood, the sovereignty of congress, though limitedto specific objects, is plenary as to those objects, the power over commerce. . . is vested in congress as absolutely as it would be in a single government,having in its constitution the same restrictions on the exercise of thepower as are found in the constitution of the United States. The wisdomand the discretion of congress, their identity with the people, and theinfluence which their constituents possess at elections, are, in this, asin many other instances, as that, for example, of declaring war, the solerestraints on which they have relied, to secure them from abuse. They arethe restraints on which the people must often rely solely, in all representativegovernments.
Gibbons, 22 U.S. at 197. Far from disavowing this principle, the SupremeCourt in modern times has expressly embraced it:
[T]he fundamental limitation that the constitutional scheme imposes on theCommerce Clause to protect "States as States" is one of processrather than one of result. Any substantive restraint on the exercise ofthe Commerce Clause powers must find its justification in the proceduralnature of this basic limitation, and it must be tailored to compensate forpossible failings in the national political process rather than to dictatea "sacred province of state autonomy."
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 554, 105 S. Ct.1005, 83 L.Ed.2d 1016 (1985).10 Chief Justice Marshall and the Garcia Courtthus explained that, because our government is a representative one, limitson a power as broad and important as that conferred by the Commerce Clausenormally must come from the Congress, which is constitutionally designedto respond most sensitively to the will of the people, rather than fromthe unelected federal judiciary.

But neither in the nineteenth nor in the twentieth century has the SupremeCourt counseled absolute judicial acquiescence to Congress's Commerce Clauselegislation. Although, as Justice Marshall's language in Ogden implies,22 U.S. at 197, Congress's capacity to represent "the people"is inherently superior to that of the courts, it is not inherently superiorto that of state legislatures. The rationale for judicial deference to CommerceClause legislation does not, therefore, apply as strongly to cases involvingconflicts between federal and state authority as it does to cases in whicha court has only its own view of what appropriately falls within the commercepower upon which to rely.

For this reason, courts reviewing Commerce Clause legislation may appropriatelytake the relative representative abilities of the states and the federalgovernment into account. Matters in which states may have the representationaladvantage include those in which community standards necessarily shape officialregulation and those in which the development of a variety of approachesis preferable to a uniform national scheme. See, e.g., Gregory, 501 U.S.at 458, 111 S. Ct. 2395 (noting that our federal structure makes governmentmore "sensitive to the needs of a heterogeneous society" and "allowsfor [] innovation and experimentation in government"). Of course, dormantCommerce Clause doctrine teaches that a uniform national scheme must alwaysbe preferred with respect to regulations of certain kinds, and Lopez similarlysuggests that when Congress regulates with respect to "commercial concernsthat are central to the Commerce Clause," inevitably it is regulatingactivity that has a substantial effect on interstate commerce. Lopez, 514U.S. at 583, 115 S. Ct. 1624 (Kennedy, J., concurring).11

Another, more fundamental aspect of the judicially-enforceable limitationon the commerce power is a court's duty to ensure the proper functioningof the constitutional mechanisms that preserve the representative authorityof the states within the national political process. See Garcia, 469 U.S.at 554, 105 S. Ct. 1005. The Supreme Court's decision in New York, 505 U.S.144, 112 S. Ct. 2408 (1992), represents an application of this principle.In that case, the Court struck down legislation designed to coerce statesinto regulating the disposal of radioactive waste in a particular fashion.The Court found the legislation unconstitutional in order to compensatefor a possible failing in the national political process. By offering bothstate and federal officials a way to address the problem of toxic wastedisposal without taking full responsibility for the unpopular task of selectingparticular disposal sites, the challenged statute "raise[d] the possibilitythat powerful incentives might lead both federal and state officials toview departures from the federal structure to be in their personal interests."Id. at 182, 112 S. Ct. 2408. Moreover, by obscuring accountability for theselection of disposal sites, the statute dampened the incentives that wouldotherwise operate to encourage these officials to protect state interests.

The New York Court recognized that the effectiveness of both state and federalgovernments as representative bodies suffers when citizens are confusedabout which sphere of government is responsible for the regulation of anactivity. Id. at 168, 112 S. Ct. 2408. The problem of political accountabilitywill be most acute when, as with the statute at issue in New York, the federalgovernment has effectively commandeered state authority:
[W]here the Federal Government directs the States to regulate, it may bestate officials who will bear the brunt of public disapproval, while thefederal officials who devised the regulatory program may remain insulatedfrom the electoral ramifications of their decision. Accountability is thusdiminished when, due to federal coercion, elected state officials cannotregulate in accordance with the views of the local electorate in mattersnot pre-empted by federal regulation.
Id. at 169, 112 S. Ct. 2408. The representative effectiveness of state andfederal governments would also be impaired if "the Federal Government[were] to take over the regulation of entire areas of traditional stateconcern, areas having nothing to do with the regulation of commercial activities,"because in this situation "the boundaries between the spheres of federaland state authority would blur and political responsibility would becomeillusory." Lopez, 514 U.S. at 577, 115 S. Ct. 1624 (Kennedy, J., concurring).

Lopez, like New York, seeks to preserve the efficacy of both the statesand the federal government as representative bodies. Seen in the broadercontext of the Supreme Court's decisions addressing federalism and the commercepower, Lopez stands for the proposition that Commerce Clause legislationmay be unconstitutional if it directly supersedes official state actionin an area of traditional state concern. In these circumstances, politicalaccountability is definitively disrupted, the value of local expertise islost, and the benefits of the development of a variety of approaches toa problem are forfeited.12

Despite its zeal to protect the rights of the states in the federal system,the majority utterly fails to recognize and respect these genuine federalism-basedlimitations. Instead it imposes its own unprecedented, formalistic limitson Congress's commerce power. In addition to its rule about economic activitiesand jurisdictional elements, the majority holds that Commerce Clause legislationis unconstitutional unless the rationale connecting the regulated activityto commerce contains a "principled" limitation. Lopez requiresimposition of such a limitation, the majority argues, because without itCongress's commerce power would become an unbridled police power. This argumentfails on several grounds.

First, contrary to the majority's suggestion, neither Lopez nor any otherSupreme Court case mandates such a holding. Certainly the Lopez Court foundthe lack of such limitations in the rationale supporting the GFSZA to beone of the factors militating against its constitutionality. 514 U.S. at564-67, 115 S. Ct. 1624. But the Court never held that this characteristicwas, in itself, sufficient to justify invalidation.

Second, the majority's requirement that Congress's Commerce Clause legislationmust be supported by a rationale with limits-one that renders some classof significant activity beyond Congress's reach-would permit courts to shirktheir duty to make reasoned decisions. If a court were allowed to strikedown a statute based solely on the principle that something must fall outsidethe scope of Congress's rationale for enacting the statute, then a courtwould be free of the responsibility to provide substantive reasons as towhy or how that particular statute exceeds Congress's authority. The SupremeCourt has expressly criticized its own prior use of an approach that permittedthis kind of decisionmaking:
Although the need to reconcile state and federal interests obviously demandedthat state immunity have some limiting principle, the Court did not tryto justify the particular result it reached; it simply concluded that "aline [must] be drawn" and proceeded to draw that line. . . . This inabilityto give principled content . . . no less significantly than its unworkability,led the Court to abandon the distinction. . . .
Garcia, 469 U.S. at 543, 105 S. Ct. 1005 (citations omitted). The majority'sapproach would permit cases to be decided based on this same empty principlethat "a line must be drawn"; courts would not, under this approach,even be required to articulate where the line lies, or why it is there.

Moreover, we certainly may not, and Lopez does not hold that we can, strikedown legislation that does not significantly interfere with state authoritysolely because Congress could someday enact more invasive legislation onthe same reasoning as that advanced to support the statute in question.A court reviewing the constitutionality of legislation should base its decisionprimarily on the operation of a statute at hand, not on its belief in theunconstitutionality of another, hypothetical statute or series of statutes.Cf. Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 569, 67S. Ct. 1409, 91 L.Ed. 1666 (1947) ("constitutional issues affectinglegislation will not be determined . . . in advance of the necessity ofdeciding them" or "in broader terms than are required by the precisefacts to which the ruling is to be applied"); Alabama State Fed'n ofLabor v. McAdory, 325 U.S. 450, 461, 65 S. Ct. 1384, 89 L.Ed. 1725 (1945)(noting Supreme Court's long practice of refusing to decide "abstract,hypothetical, or contingent questions, or to decide any constitutional questionin advance of the necessity for its decision, or to formulate a rule ofconstitutional law broader than is required by the precise facts to whichit is to be applied, or to decide any constitutional question except withreference to the particular facts to which it is to be applied" (citationsomitted)). Courts must of course consider the implications that the statutebefore them may have for the federal structure established by the Constitution.But as explained earlier, and as cases such as Lopez and New York indicate,courts should only strike down legislation to protect federalism if thereis some reason to believe that the representative authority of the stateshas been or will be unconstitutionally impaired.

Furthermore, the availability of the judicially-enforceable limitationson the commerce power, which I have described above, fatally underminesthe basic premise of the majority's approach. It simply is not the casethat, without its new "principled limitations" requirement, Congresswould have carte blanche to regulate any activity and thereby to obliteratethe division of power between the national government and the states. Wellestablished federalism-based limits on the commerce power exist to preservethe union of independent states.

Federalism concerns already empower courts to invalidate Congressional legislationthat severely interferes with the national political process, such as legislationthat seriously impairs accountability by commandeering state regulatoryauthority for federal purposes. See Printz v. United States, 521 U.S. 98,117 S. Ct. 2365, 138 L.Ed.2d 914 (1997); New York, 505 U.S. 144, 112 S.Ct. 2408 (1992). Federalism concerns also authorize courts to strike certainlegislation even if it interferes with the political process less severely.See Lopez, 514 U.S. at 583, 115 S. Ct. 1624 (Kennedy, J., concurring). Forexample, statutes that directly supersede official state action in an areaof traditional state concern are constitutionally suspect. See Lopez, 514U.S. at 561 n. 3, 564, 115 S. Ct. 1624; id. at 580-83, 115 S. Ct. 1624 (Kennedy,J., concurring). This is so because such statutes significantly interferewith political accountability, and because regulation in an area of traditionalstate concern raises the question of whether the states may be better representativesof the people than the federal government, with respect to the regulatedactivity. When a federal statute directly supersedes official state actionin an area of traditional state concern, then (and only then) may a courtproperly consider whether the rationale supporting the statute containsan inherent limiting principle. Cf. id. at 564-66, 115 S. Ct. 1624. In suchcircumstances, the danger that the approval of the statute would give Congressthe power (in theory) to eliminate the distinction between federal and stategovernment has more substance. Even statutes that lack such a limiting principle,however, should not be struck down categorically in order to satisfy "abstractnotions" of theory or propositional logic, as the majority is so eagerto do; rather, such statutes should be evaluated through the exercise ofthe kind of "practical judgment" that the Supreme Court has expresslyadvised courts to use in Commerce Clause cases, see, e.g., Polish Nat'lAlliance v. NLRB, 322 U.S. 643, 650, 64 S. Ct. 1196, 88 L.Ed. 1509 (1944),and that the Lopez Court itself employed, see, e.g., 514 U.S. at 567, 115S. Ct. 1624 (noting, with respect to the principles that guide CommerceClause adjudication, that "[t]hese are not precise formulations, andin the nature of things they cannot be").

When these principles are applied to Subtitle C, the question of its constitutionalityis not a close one; Subtitle C fits easily within these federalism-basedlimitations on Congress's power.

First, Subtitle C does not directly-or indirectly- obscure the lines ofpolitical accountability or supersede any state action. It obviously doesnot interfere with official state action in the way that the GFSZA did.The Lopez Court noted that "[u]nder our federal system, the 'Statespossess primary authority for defining and enforcing the criminal law.'. . . When Congress criminalizes conduct already denounced as criminal bythe States, it effects a 'change in the sensitive relation between federaland state criminal jurisdiction.'" Lopez, 514 U.S. at 561 n. 3, 115S. Ct. 1624 (quoting Brecht v. Abraham, 507 U.S. 619, 635, 113 S. Ct. 1710,123 L.Ed.2d 353 (1993), and United States v. Enmons, 410 U.S. 396, 411-12,93 S. Ct. 1007, 35 L.Ed.2d 379 (1973)). The GFSZA disrupted the federal-statebalance by giving federal officials the power to override a state prosecutor'sdecision not to pursue a case, as well as the power to interfere with astate prosecution by initiating a virtually identical federal action. SubtitleC, in contrast, is not a criminal statute, displaces no state criminal law,and permits no such interference with official state action.13

Nor, contrary to the majority's contentions, does Subtitle C directly supersedeor impermissibly infringe on the states' authority to regulate family lawmatters. Domestic matters may be addressed in some cases brought under SubtitleC, but no state or official regulation is superseded as a result. Instead,Congress expressly limited the reach of Subtitle C in deference to traditionalareas of state expertise on family law matters. See 42 U.S.C. § 13981(e)(4)(statute confers no "jurisdiction over any State law claim seekingthe establishment of a divorce, alimony, equitable distribution of maritalproperty, or child custody decree.").

Moreover, nothing in Subtitle C otherwise supersedes or interferes withofficial state regulation. Victims of gender-based violence remain freeto press state criminal charges and pursue state tort remedies, and statesremain free to treat such claims as they will. In fact, far from displacingstate law, Congress carefully designed Subtitle C to harmonize with statelaw and to protect areas of state concern. Subtitle C not only expresslydeprives federal courts of any jurisdiction over state law domestic relationsclaims, 42 U.S.C. § 13981(e)(4); it also specifically references statecriminal laws in defining a "crime of violence," 42 U.S.C. §13981(d)(2) ("crime of violence" defined as "an act or seriesof acts that would constitute a felony against the person or that wouldconstitute a felony against property if the conduct presents a serious riskof physical injury to another, and that would come within the meaning ofState or Federal offenses described in section 16 of Title 18." (emphasisadded)).

Subtitle C thus acts to supplement, rather than supplant, state law. Thestates may still "experiment[] to devise various solutions" tothe problems of gender-based violence. Lopez, 514 U.S. at 581, 115 S. Ct.1624 (Kennedy, J., concurring). Subtitle C simply provides victims of suchviolence with an independent, federal civil rights remedy as an alternativemeans of recovering the damages they incur.

Furthermore, Subtitle C does not regulate in an area traditionally controlledby the states, like criminal justice, as the GFSZA did.

Rather, Subtitle C governs an area-civil rights- that has been a criticallyimportant federal responsibility since shortly after the Civil War. Consequently,no problems of political accountability lurk in the implementation of SubtitleC.

Indeed, federal action is particularly appropriate when, as here, thereis persuasive evidence that the states have not adequately protected therights of a class of citizens. In passing Subtitle C, Congress made extensiveand convincing findings that state law had failed to successfully addressgender-motivated violence. Congress concluded that:
Other State remedies have proven inadequate to protect women against violentcrimes motivated by gender animus. Women often face barriers of law, ofpractice, and of prejudice not suffered by other victims of discrimination.Traditional State law sources of protection have proved to be difficultavenues of redress for some of the most serious crimes against women. Studyafter study has concluded that crimes disproportionately affecting womenare often treated less seriously than crimes affecting men. Collectively,these reports provide overwhelming evidence that gender bias permeates thecourt system and that women are most often its victims.
S. Rep. No. 103-138, at 49 (footnotes omitted).14

Congress further noted that "[e]ach and every one of the existing civilrights laws covers an area in which some aspects are also covered by Statelaws. What State laws do not provide, and cannot provide by their very nature,is a national antidiscrimination standard." S. Rep. No. 102-197, at49. In Subtitle C, Congress acted in a paradigmatic area of federal expertiseand passed a civil rights law in response to "existing bias and discriminationin the criminal justice system." H.R. Conf. Rep. No. 103-711, at 385.

Not only did extensive objective evidence support Congress's conclusionthat the states could not effectively deal with the pervasive problem ofgender-based violence, but state officials themselves confirmed the inabilityof the states to handle the problem. Indeed, nothing more clearly illustratesthe basic difference between Subtitle C and the GFSZA than the fact thatSubtitle C responded to the states' self-described needs, while the GFSZAadded a redundant layer of federal regulation in an area where most stateshad already acted.

Before Congress ever enacted the GFSZA, 40 states had already effectivelyaddressed possession of guns near schools and, in fact, had enacted criminalstatutes outlawing the very behavior made a federal crime in the GFSZA,Lopez, 514 U.S. at 581, 115 S. Ct. 1624 (Kennedy, J., concurring); indeed,Lopez himself was originally arrested by state authorities and charged witha state crime. In sharp contrast, prior to the enactment of VAWA, 41 AttorneysGeneral from 38 states (including Virginia), the District of Columbia, andtwo territories, urged Congress to enact the legislation, explaining thatthe states had been unable to solve the problems arising from gender-animatedviolence. See Crimes of Violence Motivated by Gender: Hearing Before theSubcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary,103d Cong. 34-36 (1993) (Letter from Attorneys General). The highest lawenforcement officer in each of these jurisdictions told Congress: "Ourexperience as attorneys general strengthens our belief that the problemof violence against women is a national one, requiring federal attention,federal leadership, and federal funds." Id.; see also Women and Violence:Hearing before the Senate Comm. on Judiciary, 101st Cong. 137-56 (1990)(noting pervasive nature of this problem in both rural and urban areas).

When there has been, as there was here, a "demonstrated state failure"to deal with a problem, Congress would even be justified, as the Chief Justicehas recently noted, in federalizing state crimes. See Chief Justice WilliamH. Rehnquist, 1998 Year-End Report on the Federal Judiciary (January 1999).15Thus, Congress was certainly justified in concluding that gender-based violencequalified as a problem for which national civil rights legislation was preferableto a variety of failed state approaches.

The majority disregards this evidence in favor of its own conception ofthe states' needs, and ignores the structural limitations inherent in ourfederal system in favor of its own categorical and unprecedented limitson Congress's power. It must do so in order to find that federalism concernsrequire the invalidation of Subtitle C. In fact, no federalism concernsrequire this result: Subtitle C does not supersede or intrude on any statepowers, nor does it regulate in any area of traditional state concern. Rather,Subtitle C governs civil rights, a traditional subject of federal regulation,and provides a necessary national remedy for a severe problem that the stateshave, by their own admission, been unable to address effectively.
D.
The proper judicial role in commerce power cases certainly does not permitcourts to surrender responsibility for safeguarding federalism to Congress.Nor does it require courts to simply stand and watch while Congress federalizeswhole areas of law traditionally regulated by the states. It does, however,strictly confine a court's ability to strike down an act of Congress basedon judgments of a kind that an unrepresentative body is ill-equipped tomake.

History and precedent demonstrate that courts are not adept in formulatingrules that limit the commerce power by guaranteeing a sphere of governmentalauthority to the states. In order to create and enforce such rules, judgesinevitably rely, as my colleagues in the majority do, upon their own conceptionof "what is truly national and what is truly local." Lopez, 514U.S. at 567-68, 115 S. Ct. 1624.

This approach directly contradicts the principles that identify a court'sproper role. More than fifty years ago, the Supreme Court explained thatthe determination of whether an activity sufficiently affects interstatecommerce
is a matter of practical judgment, not to be determined by abstract notions.The exercise of this practical judgment the Constitution entrusts primarilyand very largely to the Congress, subject to the latter's control by theelectorate. Great power was thus given to the Congress: the power of legislationand thereby the power of passing judgment upon the needs of a complex society.Strictly confined though far reaching power was given to this Court: thatof determining whether the Congress has exceeded limits allowable in reasonfor the judgment which it has exercised.
Polish Nat'l Alliance, 322 U.S. at 650, 64 S. Ct. 1196. The majority, ofcourse, rejects a "strictly confined" judicial role. Instead,it would have courts substitute their own "abstract notions" aboutthe proper allocation of power between the federal and state governmentsfor the "practical judgment" that emerges from the political andlegislative processes. This approach not only inflates judicial authority,it also demeans the constitutional structure, derogates congressional integrityand decisionmaking, and underestimates state power.

Even more disturbingly, the majority's ruling undermines the fundamentalprinciple of the government under which the federal courts were created:that the people, through the mechanisms and within the limits describedin the Constitution, have the ultimate authority to determine how they areto be governed. The majority today does not act to protect the rights ofpeople underrepresented by the mechanisms of government. Rather, the majorityseeks, in the name of "the People," to defend the states. Boththe states and the people, however, are represented in the federal legislativeprocess. Moreover, they are represented through mechanisms that, both practicallyand constitutionally, are far better designed than is the judiciary to protecttheir interests in preventing an improper distribution of power betweenthe national government and the states.

My colleagues in the majority iterate and reiterate that the enumerationof powers in the Constitution reserves authority to the states, that oursis a system of dual sovereignty, and that the states must operate as independentgovernmental bodies for that system to continue to exist. No one doubtsthe validity of any of these principles. The critical question, however,is who decides how they are to be upheld.

The Constitution itself provides a clear and specific answer to that question.It gives the fundamental power of government-the power of legislation-toCongress. Congress is not some central dictatorial assembly with interestsindependent of and antithetical to those of the states. Rather, Congressis composed entirely of members elected from each state to represent theinterests of the people of that state, and is specifically designed to preservestate authority and protect state interests. Congressional legislation accordinglyis not, as the majority suggests, a command from an autonomous central powerto totally subjugated states. Congressional legislation is instead the productof the constitutionally coordinated authorities of the states, the localities,and the people. Courts thus have slender authority to invalidate the resultof Congress's legislative process in order to protect the states or localities,unless there is some reason to suspect that the legislative process hasbeen or will be unreliable.

The majority believes that we, the judiciary, know best when it comes todeciding which level of government can enact certain legislation; in essence,the majority's ruling today seeks to defend the states and the people againstthemselves in order to enforce its own understanding of what the federalgovernment can properly do, and what must be left to the states. When federalcourts undertake responsibility of this kind without specific constitutionalsupport, the threat to our system of government is grave indeed.

Judges Murnaghan, Ervin, and Michael have authorized me to indicate thatthey join in this dissent.

1 Congress also expressly stated that Section 5 of the Fourteenth Amendmentauthorized enactment of this statute. See 42 U.S.C. § 13981(a). Inview of my conclusion that the statute is a valid exercise of Congress'sCommerce Clause power, I need not reach the question of whether the FourteenthAmendment also authorized it. Despite the majority's statements to the contrary,however, nothing in the record demonstrates that Brzonkala or the Government"primarily" defended Subtitle C as a valid exercise of Congress'sFourteenth Amendment power in reaction to United States v. Lopez, 514 U.S.549, 115 S. Ct. 1624, 131 L.Ed.2d 626 (1995), or that they subsequently"retreated to defend" it "primarily as an exercise"of Commerce Clause power in reaction to City of Boerne v. Flores, 521 U.S.507, 117 S. Ct. 2157, 138 L.Ed.2d 624 (1997). Ante, at 826. In their initialbriefs before a panel of this court, the Government and Brzonkala arguedboth issues- allotting substantial attention to both, but perhaps slightlymore to the Fourteenth Amendment; for example, that issue was addressedfirst. In the supplemental briefs submitted to the en banc court after thepanel had, without reaching the Fourteenth Amendment question, upheld thestatute as a valid exercise of Congress's commerce power, the Governmentand Brzonkala again addressed both issues. This time, however, they devotedslightly more attention to the Commerce Clause argument, placing it first.Although the supplemental briefs were filed after Boerne issued, it seemsto me that the parties' slight change in emphasis could well be simply areaction to the perceived interest of our court.
2 Most of Congress's findings do not appear in the statute itself, but inapplying rational basis review courts also consider findings of congressionalcommittees. See Lopez, 514 U.S. at 562, 115 S. Ct. 1624; see also Preseaultv. ICC, 494 U.S. 1, 17, 110 S. Ct. 914, 108 L.Ed.2d 1 (1990) (citing HouseReport in discussion of congressional findings regarding effect on interstatecommerce of federal "rails-to-trails" statute); Hodel, 452 U.S.at 277-80, 101 S.Ct. 2352 (relying on committee reports to uphold Congress'spower under the Commerce Clause to enact the Surface Mining and ReclamationControl Act); Hoffman v. Hunt, 126 F.3d 575, 587 (4th Cir. 1997) (relyingon a House Report to uphold Freedom of Access to Clinic Entrances Act (FACE)as a legitimate exercise of Commerce Clause power).
3 These specific findings are not mere "incidental rationalizations."See ante, at--(Niemeyer, J., concurring). Rather, Congress has demonstratedthat gender-motivated violence is an "activity having a direct andsubstantial effect on the supply and therefore the price" of healthcare, consumer goods, and the like in the same way that a farmer's consumptionof his home-grown wheat was held in Wickard v. Filburn, 317 U.S. 111, 128,63 S. Ct. 82, 87 L.Ed. 122 (1942), to have the requisite effect on interstatecommerce because of its impact on the supply and price of the national wheatmarket. But see ante, at 902-03 (Niemeyer, J., concurring).
4 Similarly, the majority's contention as to the statute's purposes is meritless.The majority asserts that one of Subtitle C's "express statutory purpose[s]"-"topromote public safety, health, and activities affecting interstate commerce"-exhibitsCongress's "misapprehension of the scope of the power to regulate interstatecommerce." Ante, at 850-51. But in Hodel, the Supreme Court held thatCongress could properly exercise its Commerce Clause power to require restorationof mined "prime farmland," which had only an "infinitesimal"effect on interstate commerce, 452 U.S. at 322-24, 101 S. Ct. 2376, becauseCongress could reasonably act to protect "agriculture, the environment,or public health and safety, injury to any of which interests would havedeleterious effects on interstate commerce," id. at 329, 101 S. Ct.2376 (emphasis added).
5 The majority contends that in reaching this conclusion I have failed toengage in any "independent analysis of whether gender-motivated violencesubstantially affects interstate commerce." Ante, at 857. First, Inote that this criticism epitomizes the majority's flawed approach to thequestion before us-judges are not to determine in the first instance whethera regulated activity substantially affects interstate commerce. Rather,they are, as the Lopez Court directed, "to evaluate the legislativejudgment that the activity in question substantially affected interstatecommerce." Lopez, 514 U.S. at 563, 115 S. Ct. 1624 (emphasis added).
Second, the majority's criticism that I have failed to make any "independentanalysis" would only be valid if "independent analysis" requiredone to disagree with Congress. The majority offers no support for such anotion, and there is none. In fact, Supreme Court precedent demonstratesthat if a court, after evaluating a statute and its legislative record,finds that it agrees with Congress's legislative judgment that a regulatedactivity substantially affects interstate commerce, the opinion of the courtneed only identify the relevant portions of the legislative record and statethe court's conclusion that the legislative judgment made by Congress hada rational basis. See, e.g., Hodel, 452 U.S. at 277-80, 101 S. Ct. 2352(describing legislative record and then stating, "[i]n light of theevidence available to Congress and the detailed consideration that the legislationreceived, we cannot say that Congress did not have a rational basis forconcluding that surface coal mining has substantial effects on interstatecommerce"); Heart of Atlanta, 379 U.S. at 252-53, 85 S. Ct. 348 (citingevidence in legislative record, in the absence of any findings, and thenstating "the voluminous testimony presents overwhelming evidence thatdiscrimination by hotels and motels impedes interstate travel"). Ihave done precisely that here.
6 Other courts have, without discussion of the constitutional question,held that a plaintiff has stated a valid cause of action under SubtitleC and so refused to grant defendants' motions to dismiss. See, e.g., Kuhnv. Kuhn, No. 98 C 2395, 1998 WL 673629 (N.D. Ill. Sept. 16, 1998); see alsoWesley v. Don Stein Buick, Inc., 985 F. Supp. 1288, 1300-01 (D. Kan. 1997)(permitting plaintiff to amend her complaint to state a claim under SubtitleC without reaching the constitutional question).
7 The distinction between harm to property and harm to persons is not merelya hypothetical one here; rather it is directly relevant to the scope ofthe majority's holding, because Subtitle C applies to property damage aswell. It is difficult to see how the majority's rationale about economicactivities could apply to this aspect of the statute. Could one honestlysay that a statute, which provides a remedy for property damage caused bygender-based violence, regulates an activity that is insufficiently economicto come within the commerce power? One could only do so by falling backon unfounded categorical assertions that violence, or at least gender-basedviolence, is not an economic activity. One certainly could not say thata statute providing a remedy for gender-based property damage regulates"a type of crime relatively unlikely to have any economic characterat all." Ante, at 834. This aspect of Subtitle C would thus seem tobe unaffected by the court's opinion today. Yet the majority purports toinvalidate Subtitle C in its entirety.
8 The majority also maintains that I do not apply the rational basis standardand that it does. See ante, at 857-58. I am content to let the reader judge.
9 Post-Lopez, our sister circuits have often reiterated that "court[s]must defer to a congressional finding that a regulated activity affectsinterstate commerce, if there is any rational basis for such a finding."Terry, 101 F.3d at 1416; accord Proyect, 101 F.3d at 12-13; United Statesv. McKinney, 98 F.3d 974, 979 (7th Cir. 1996); Hampshire, 95 F.3d at 1004;United States v. Kim, 94 F.3d 1247, 1250 (9th Cir. 1996); United Statesv. Bishop, 66 F.3d 569, 576-77 (3d Cir. 1995); Cheffer v. Reno, 55 F.3d1517, 1520-21 (11th Cir. 1995); see also Knutson, 113 F.3d at 29-31 (upholding18 U.S.C. § 922(o) solely on the basis of "congressional findings"and noting that Lopez "made clear that federal Commerce Clause legislationcontinues to merit a high degree of judicial deference"); United Statesv. Monteleone, 77 F.3d 1086, 1091-92 (8th Cir. 1996) (upholding 18 U.S.C.§ 922(d) on the basis of "explicit Congressional findings").Moreover, in Leshuk, 65 F.3d at 1112, this court upheld the ComprehensiveDrug Abuse Prevention and Control Act principally on the basis of Congress'sdetailed findings.
10 The majority scolds me for citing and quoting Garcia v. San Antonio Metro.Transit, 469 U.S. 528, 105 S. Ct. 1005, 83 L.Ed.2d 1016 (1985), becausethen-Justice Rehnquist and Justice O'Connor, in their dissents in that case,predicted that it would one day be overruled so that the Court could resumeits "constitutional responsibility to oversee the Federal Government'scompliance with its duty to respect the legitimate interests of the States."Ante, at 861 (quoting Garcia, 469 U.S. at 589, 105 S. Ct. 1005 (O'Connor,J., dissenting)) (internal quotation marks omitted). Garcia, however, remainsthe law of the land, and treating it as such hardly constitutes "quaintinnocence." Ante at 860. Furthermore, the emphasis placed on politicalaccountability in cases like New York and Printz v. United States, 521 U.S.98, 117 S. Ct. 2365, 138 L.Ed.2d 914 (1997), conclusively demonstrates thatthe political process concerns articulated in Garcia have in fact provedto be more accommodating of an effective judicial role in protecting federalismthan they initially appeared to be. Far from being "in blissful denialof the Court's most recent precedents on Our Federalism," ante, at860, therefore, faithful adherence to those precedents requires courts tochoose an approach deriving from considerations of representative authorityand political process over a categorical approach of the sort that the majorityadopts today. Finally, and most importantly, the majority's criticism ofmy use of Garcia rests on a fundamental misrepresentation of my position.Whatever the legal or totemic significance of Garcia, I nowhere maintain,and this dissent cannot fairly be read even to suggest, that "Congressalone is constitutionally responsible for the protection of the sovereignStates." Ante, at 860. Rather, I repeatedly and expressly recognizethat the courts, and not just Congress, have a definite obligation to ensurethat our federal structure remains intact. See supra, at 925-26, and infra,at 926-28, 929-30, 932.
11 Thus, not only is federal regulation of this kind constitutional underthe affirmative Commerce Clause, but also state regulation of this sort,if it benefits in-state interests and burdens out-of-state interests, isprohibited by the dormant Commerce Clause. A court reviewing such federalregulation need not weigh the representative capacity of a state legislatureagainst that of Congress because, as the dormant Commerce Clause teaches,the value of state representative authority could not, in those circumstances,outweigh the value of national uniformity. A court, therefore, need onlyconsider whether the states are better suited than Congress to regulatea certain subject if the states would be permitted to discriminate in favorof their own residents in regulating that subject. It is solely in thiscontext-that of identifying the class of cases in which a court can considerthe possible representative superiority of the states-that the questionof whether the regulated activity is sufficiently commercial or "economic"becomes relevant. Contrary to the majority's assertions, there is no rulethat Congress is prohibited from ever using the commerce power to regulatecertain subjects-for example, activities that the majority categorizes as"non-economic"-just because they are not at the core of the CommerceClause.
12 As Justice Kennedy suggested in Lopez, 514 U.S. at 577, 115 S.Ct. 1624,history may often be relevant in determining whether a statute will impermissiblyblur the lines of political accountability; the likelihood that citizenswill become confused regarding which sphere of government is responsiblefor regulation of an activity will depend in part on which sphere has traditionallycontrolled it. History can also be a guide to the identification of areasin which states may be superior to Congress as representative entities.However, courts should not, indeed cannot, rule an act of Congress unconstitutionaljust because it regulates a matter historically governed by the states.Congress undeniably has the power to legislate in areas traditionally controlledby the states. See Gregory, 501 U.S. at 460, 111 S. Ct. 2395. Moreover,as the Supreme Court has observed in the context of state immunity, historycannot reasonably be made dispositive on questions of federalism:
The most obvious defect of a historical approach to state immunity is thatit prevents a court from accommodating changes in the historical functionsof States. . . . At the same time, the only apparent virtue of a rigoroushistorical standard, namely, its promise of a reasonably objective measurefor state immunity, is illusory. Reliance on history as an organizing principleresults in line-drawing of the most arbitrary sort; the genesis of stategovernmental functions stretches over a historical continuum from beforethe Revolution to the present, and courts would have to decide by fiat preciselyhow longstanding a pattern of state involvement had to be for federal regulatoryauthority to be defeated.
Garcia, 469 U.S. at 543-44, 105 S. Ct. 1005. The same principles apply here.
13 Because Subtitle C is not a criminal statute, reliance on and analogyto the cost of crime rationale that was rejected in Lopez is misplaced.See ante, at 838-40; 901-02 (Niemeyer, J., concurring). Congress did notattempt to justify its enactment of Subtitle C with vague references tothe high cost of crime. Rather, Congress's enactment of Subtitle C was firmlyrooted in rational findings, based on abundant evidence, that violence causedby gender animus substantially affects interstate commerce.
14 The studies referred to in the above quotation were largely state-sponsored,including the following: Administrative Office of the California CourtsJudicial Counsel, Achieving Equal Justice for Women and Men in the Courts(1990); Colorado Supreme Court Task Force on Gender Bias in the Courts,Gender & Justice in the Colorado Courts (1990); Connecticut Task Forceon Gender Justice and the Courts (1991); Florida Supreme Court Gender BiasStudy Commission, Report (1990); Supreme Court of Georgia, Gender and Justicein the Courts (1991); Illinois Task Force, Gender Bias in the Courts (1990);Maryland Special Joint Committee, Gender Bias in the Courts (1989); MassachusettsSupreme 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 (1989); Minnesota Supreme Court Task Force for Gender Fairnessin the Courts, Final Report (1989); Nevada Supreme Court Gender Bias TaskForce, Justice For Women (1989); New Jersey Supreme Court Task Force, Womenin the Courts (1984); New York Task Force on Women in the Courts, Report(1986); Rhode Island Supreme Court Committee on Women in the Courts (1987);Utah Task Force on Gender and Justice, Report to the Utah Judicial Council(1990); Vermont Supreme Court and Vermont Bar Association, Gender and Justice:Report of the Vermont Task Force on Gender Bias in the Legal System (1991);Washington State Task Force, Gender and Justice in the Courts (1989); WisconsinEqual Justice Task Force, Final Report (1991). See S. Rep. No. 103-138,at 49 n.52.
15 The majority quotes the Chief Justice's criticism, in 1991, of the civilrights provision of VAWA as it had been proposed at that time. Ante at 842.That criticism pertained to an earlier, very different version of the statute,and it has not been reiterated since Subtitle C was enacted in its currentform. The majority also notes that last year the Chief Justice includedVAWA in a list of statutes whose enactment he regarded as bad policy. Id.,at 842-43 n. 12. The Chief Justice's most recent Year-End Report, however,suggests that this discomfort with VAWA primarily pertains not to VAWA'scivil rights provision, but rather to its criminal provisions, which constitutepart of the trend "to federalize crimes." Chief Justice WilliamH. Rehnquist, 1998 Year-End Report on the Federal Judiciary (January 1999).Moreover, as noted in text above, the Chief Justice has expressly recognizedthat "demonstrated state failure"-a consideration that Congressplainly relied upon in enacting Subtitle C-makes even the federalizationof state crimes acceptable. Id.

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No. 99-5: United States v. Morrison