Document 19: United States, Petitioner v. Antonio J. Morrison et al. (no. 99-5), Christy Brzonkala, Petitioner v. Antontio J. Morrison et al. (no. 99-29). Argued 11 January 2000. Decided 15 May 2000. United States Supreme Court Reports, Lawyer's Edition. Volume 146 L Ed. 2d, No. 6.

Introduction

       On May 15, 2000, the United States Supreme Court decided that Congress had no authority to provide victims of gender-motivated violence access to federal courts. In a 5-4 ruling, the Court decided that the VAWA’s civil rights remedy was unconstitutional and that Congress could not regulate intrastate criminal conduct under the commerce clause, but rather that such issues should be left to the states. The Court found the civil rights remedy to be beyond Congress’s authority to enforce the 14th Amendment because it was directed against private individuals, not state actors. Many consider the United States v. Morrison ruling as a historic loss for women.

UNITED STATES, Petitioner

v.

ANTONIO J. MORRISON et al. (No. 99-5)

CHRISTY BRZONKALA, Petitioner

v.

ANTONIO J. MORRISON et al. (No. 99-29)

529 US--, 146 L Ed 2d 658, 120 S Ct--

Argued January 11, 2000. Decided May 15, 2000.

Decision: Congress held to have no authority under either Federal Constitution's commerce clause or § 5 of Constitution's Fourteenth Amendment to enact 42 USCS §13981, providing federal civil remedy for victims of gender-motivated violence.

SUMMARY

       A woman who had been a student at a Virginia university (1) filed suit in the United States District Court for the Western District of Virginia against defendants including two male individuals; and (2) alleged, among other matters, that (a) she had been raped by the two individuals while she and they had been attending the university, and (b) this attack violated 42 USCS § 13981, which provided a federal civil remedy for the victims of gender-motivated violence. The United States intervened to defend §13981's validity under the Federal Constitution. Although the District Court decided that the complaint stated a claim against the two alleged attackers under § 13981, the District Court, in dismissing the complaint, reasoned that Congress lacked authority to enact § 13981 under either the Constitution's commerce clause (Art I, § 8, cl 3) or § 5 of the Constitution's Fourteenth Amendment (935 F Supp 779). A panel of the United States Court of Appeals for the Fourth Circuit initially reversed the District Court (132 F3d 949). However, on rehearing en banc, the Court of Appeals, among other matters, instead affirmed the District Court's determination that Congress lacked authority under the Constitution to enact § 13981's civil remedy (169 F3d 820).

        On certiorari, the United States Supreme Court affirmed. In an opinion by REHNQUIST, Ch. J., joined by O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., it was held that Congress had no authority to enact § 13981 under either the commerce clause or § 5 of the Fourteenth Amendment, as, among other matters, (1) gender-motivated crimes of violence were not--in any sense of the phrase--economic activity; (2) § 13981 contained no jurisdictional element establishing that a federal cause of action was in pursuance of Congress' power to regulate interstate commerce; (3) the Constitution required a distinction between what was truly national and what was truly local; (4) there was no better example of state police power than the suppression of violent crime and the vindication of victims; and (5) § 13981 was directed at individuals who had committed criminal acts motivated by gender bias, rather than at a state or state actor.

        THOMAS, J., concurring, expressed the view that while the decision in United States v Lopez (1995) 514 US 549, 131 L Ed 2d 626, 115 S Ct 1624, was correctly applied to the case at hand, (1) the notion of a "substantial effects" test under the commerce clause was inconsistent with the original understanding of Congress' powers and with the Supreme Court's early commerce clause cases; and (2) by continuing to apply this standard, the Supreme Court encouraged the Federal Government to persist in the view that the commerce clause had virtually no limits.

        SOUTER, J., joined by STEVENS, GINSBURG, and BREYER, JJ., dissenting, expressed the view that (1) some claims by the Supreme Court in the case at hand--that (a) the court's commerce clause precedent was left undisturbed, and (b) § 13981 exceeded Congress's power under that clause--were irreconcilable; (2) Congress had the power to legislate with regard to activity that, in the aggregate, had a substantial effect on interstate commerce; and (3) the sufficiency of the evidence assembled by Congress--showing the effects of violence against women on interstate commerce--could not seriously be questioned under a rational-basis standard.

        BREYER, J., joined by STEVENS, J., and joined in part (as to points 1 and 2 below) by SOUTER and GINSBURG, JJ., dissenting, expressed the view that (1) virtually every kind of activity in the nation--due to centuries of scientific, technological, commercial, and environmental change--could affect commerce outside a specific state; (2) Congress--representing state and local district interests--could reflect state concerns for autonomy in the details of sophisticated statutory schemes better than the judiciary; (3) § 13981's enactment by Congress represented state and federal efforts to cooperate in order to help solve a mutually acknowledged national problem; and (4) § 13981 was a necessary and proper exercise of legislative power granted to Congress by the commerce clause.

HEADNOTES

Classified to United States Supreme Court Digest, Lawyers' Edition

Commerce § 86; Constitutional Law § 7--gender-motivated violence--remedy

     1a-1d. Congress has no authority to enact 42 USCS § 13981--which provides a federal civil remedy for victims of gender-motivated violence--under either the Federal Constitution's commerce clause (Art I, § 8, cl 3) or § 5 of the Constitution's Fourteenth Amendment. (Souter, Stevens, Breyer, and Ginsburg, JJ., dissented from this holding.)

Statutes § 13--validity

     2a, 2b. Every law enacted by Congress must be based on one or more of Congress' powers enumerated in the Federal Constitution, as (1) the powers of the legislature are defined and limited, and (2) those limits may not be mistaken or forgotten; due respect for the decisions of a coordinate branch of government demands that the United States Supreme Court invalidate a congressional enactment only upon a plain showing that Congress has exceeded Congress' bounds under the Constitution.

Commerce § 61--regulation by Congress

     3. While Congress has considerable latitude in regulating conduct and transactions under the United States Supreme Court's modern and expansive interpretation of the Federal Constitution's commerce clause (Art I, § 8, cl 3), Congress' regulatory authority is not without effective bounds.

Commerce § 61--regulation by Congress

     4. Modern jurisprudence relating to the Federal Constitution's commerce clause (Art I, § 8, cl 3) identifies three broad categories of activity that Congress may properly regulate and protect under Congress' commerce power, which categories are (1) the use of the channels of interstate commerce, (2) the instrumentalities of interstate commerce--or persons or things in interstate commerce--even though the threat may come only from intrastate activities, and (3) those activities having a substantial relation to interstate commerce, that is, those activities that substantially affect interstate commerce.

Commerce § 86--gender-motivated violence--civil remedy

     5a-5c. United States v Lopez (1995) 514 US 549, 131 L Ed 2d 626, 115 S Ct 1624--which held that the Gun-Free School Zones Act of 1990 (18 USCS § 922(q)(1)(A)), making it a federal crime to knowingly possess a firearm in a school zone, exceeded Congress' authority under the Federal Constitution's commerce clause (Art I, § 8, cl 3)--(1) provides the proper framework for conducting the required commerce clause analysis of 42 USCS § 13981, which provides a federal civil remedy for victims of gender-motivated violence; and (2) demonstrates that while the United States Supreme Court need not adopt a categorical rule in order to decide the § 13981 question, in those cases where the Supreme Court has sustained federal regulation of intrastate activity based upon the activity's substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor. (Souter, Stevens, Breyer, and Ginsburg, JJ., dissented from this holding.)

Commerce § 64--regulation by Congress

    6a-6f. In determining whether a federal statute exceeds Congress' authority under the Federal Constitution's commerce clause (Art I, § 8, cl 3), significant considerations include whether (1) economic activity that substantially affects interstate commerce is to be regulated, (2) the statute contains an express jurisdictional element which might limit the statute's reach to explicitly connect with, or affect, interstate commerce, (3) the statute or the statute's legislative history contains express congressional findings regarding the effects upon interstate commerce, and (4) the link between the regulated conduct and a substantial effect on interstate commerce is attenuated; where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.

Courts § 109.5--legislative findings

     7. While Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce, the existence of such findings may enable the United States Supreme Court to evaluate the legislative judgment that the activity in question substantially affects interstate commerce, even though no such substantial effect is visible to the naked eye.

Commerce § 86--gender-motivated violence

     8. For purposes of Congress' regulatory power under the Federal Constitution's commerce clause (Art I, § 8, cl 3), gender-motivated crimes of violence are not--in any sense of the phrase--economic activity.

Commerce § 86--gender-motivated violence--civil remedy

     9. Like the Gun-Free School Zones Act of 1990 (18 USCS § 922(q)(1)(A)) at issue in United States v Lopez (1995) 514 US 549, 131 L Ed 2d 626, 115 S Ct 1624--holding that a federal crime of knowingly possessing a firearm in a school zone exceeded Congress' authority under the Federal Constitution's commerce clause (Art I, § 8, cl 3)-- 42 USCS § 13981, which provides a federal civil remedy for victims of gender-motivated violence, contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce, as Congress instead elected to cast § 13981's remedy over a wider, and more purely intrastate, body of violent crime. (Souter, Stevens, Breyer, and Ginsburg, JJ., dissented from this holding.)

Commerce § 86; Courts § 116--gender-motivated violence--regulation

     10. Although 42 USCS § 13981, which provides a federal civil remedy for victims of gender-motivated violence, is supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and the families of victims, the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of legislation under the Federal Constitution's commerce clause (Art I, § 8, cl 3); whether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate those operations (1) is ultimately a judicial rather than a legislative question, and (2) can be settled finally only by the United States Supreme Court. (Souter, Stevens, Breyer, and Ginsburg, JJ., dissented from this holding.)

Courts § 92.3--federal power

     11a, 11b. Under the Federal Constitution, the limitation of congressional authority is not solely a matter of legislative grace, but a permanent and indispensable feature of the nation's constitutional system, as the federal judiciary is supreme in the exposition of the law of the Constitution.

Constitutional Law § 8; Courts§ 44--interpretation by branches

     12a, 12b. In the performance of assigned constitutional duties each branch of the government must initially interpret the Federal Constitution, and the interpretation of its powers by any branch is due great respect from the others; however, it is emphatically the province and the duty of the judicial department to say what the law is.

Commerce § 108--violent crime--effect--regulation by Congress or states

     13a, 13b. Congress may not properly regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce, as (1) the Federal Constitution requires a distinction between what is truly national and what is truly local, (2) the regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the states, and (3) there is no better example of the police power, which the nation's founders denied the national government and reposed in the states, than the suppression of violent crime and vindication of victims. (Souter, Stevens, Breyer, and Ginsburg, JJ., dissented from this holding.)

States, Territories, and Possessions § 32--police power

     14a, 14b. The Federal Constitution--with its careful enumeration of federal powers and explicit statement that all powers not granted to the Federal Government are reserved--cannot realistically be interpreted as granting the Federal Government an unlimited license to regulate; moreover, deeply ingrained in the nation's constitutional history is the principle that the Constitution created a Federal Government of limited powers, while reserving a generalized police power to the states.

Constitutional Law § 7--Fourteenth Amendment--enforcement

     15. Section 5 of the Federal Constitution's Fourteenth Amendment--which provides that Congress may enforce, by appropriate legislation, the constitutional guarantees of due process and equal protection--is a positive grant of legislative power to Congress that includes authority to (1) prohibit conduct which is not itself unconstitutional, and (2) intrude into legislative spheres of autonomy previously reserved to the states; however, as broad as the congressional enforcement power is, the power is not unlimited, for several limitations inherent in § 5's text and constitutional context have been recognized since the Fourteenth Amendment was adopted.

Constitutional Law § 7--gender discrimination--congressional attack

     16. State-sponsored gender discrimination violates equal protection under the Federal Constitution's Fourteenth Amendment unless (1) the discrimination serves important governmental objectives, and (2) the discriminatory means employed are substantially related to the achievement of those objectives; however, the language and purpose of the Fourteenth Amendment place certain limitations on the manner in which Congress may attack discriminatory conduct; these limitations--which include the principle that the Fourteenth Amendment, by the Amendment's very terms, prohibits only state action--are necessary to prevent the Fourteenth Amendment from obliterating the Framers' carefully crafted balance of power between the states and the national government. (Breyer and Stevens, JJ., dissented in part from this holding.)

Constitutional Law § 7--Fourteenth Amendment--civil remedy

    17. Prophylactic legislation under § 5 of the Federal Constitution's Fourteenth Amendment must have a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end; under this test, the civil remedy provided by 42 USCS § 13981 for victims of gender-motivated violence is not corrective in character, that is, the remedy is not adapted to counteract and redress the operation of such prohibited state laws or proceedings of state officers; moreover, for such purposes, § 13981 is not aimed at proscribing discrimination by officials which the Fourteenth Amendment might not itself proscribe, for § 13981 is directed at individuals who have committed criminal acts motivated by gender bias, rather than at any state or state actor.

OPINION OF THE COURT

       Chief Justice REHNQUIST delivered the opinion of the Court.

       [1a] In these cases we consider the constitutionality of 42 USC § 13981 [42 USCS § 13981], which provides a federal civil remedy for the victims of gender-motivated violence. The United States Court of Appeals for the Fourth Circuit, sitting en banc, struck down § 13981 because it concluded that Congress lacked constitutional authority to enact the section's civil remedy. Believing that these cases are controlled by our decisions in United States v. Lopez, 514 US 549, 131 L Ed 2d 626, 115 S Ct 1624 (1995), United States v. Harris, 106 US 629, 27 L Ed 290, 1 S Ct 601 (1883), and the Civil Rights Cases, 109 US 3, 27 L Ed 835, 3 S Ct 18 (1883), we affirm.

I

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

       Brzonkala alleges that this attack caused her to become severely emotionally disturbed and depressed. She sought assistance from a university psychiatrist, who prescribed antidepressant medication. Shortly after the rape Brzonkala stopped attending classes and withdrew from the university.

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

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

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

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

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

       A divided panel of the Court of Appeals reversed the District Court, reinstating Brzonkala's § 13981 claim and her Title IX hostile environment claim. Brzonkala v. Virginia Polytechnic and State Univ., 132 F3d 949 (CA4 1997). The full Court of Appeals vacated the panel's opinion and reheard the case en banc. The en banc court then issued an opinion affirming the District Court's conclusion that Brzonkala stated a claim under § 13981 because her complaint alleged a crime of violence and the allegations of Morrison's crude and derogatory statements regarding his treatment of women sufficiently indicated that his crime was motivated by gender animus. Nevertheless, the court by a divided vote affirmed the District Court's conclusion that Congress lacked constitutional authority to enact § 13981's civil remedy. Brzonkala v. Virginia Polytechnic and State Univ., 169 F3d 820 (CA4 1999). Because the Court of Appeals invalidated a federal statute on constitutional grounds, we granted certiorari. 527 US 1068, 144 L Ed 2d 842, 120 S Ct 11 (1999).

       Section 13981 was part of the Violence Against Women Act of 1994, § 40302, 108 Stat 1941-1942. It states that "persons within the United States shall have the right to be free from crimes of violence motivated by gender." 42 USC § 13981 [42 USCS § 13981](b). To enforce that right, subsection (c) declares:

       "A person (including a person who acts under color of any statute, ordinance, regulation, custom, or usage of any State) who commits a crime of violence motivated by gender and thus deprives another of the right declared in subsection (b) of this section shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate."

        Section 13981 defines a "crim[e] of violence motivated by gender" as "a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender." § 13981(d)(1). It also provides that the term "crime of violence" includes any

        "(A) . . . act or series of acts that would constitute a felony against the person or that would constitute a felony against property if the conduct presents a serious risk of physical injury to another, and that would come within the meaning of State or Federal offenses described in section 16 of Title 18, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction and whether or not those acts were committed in the special maritime, territorial, or prison jurisdiction of the United States; and

        "(B) includes an act or series of acts that would constitute a felony described in subparagraph (A) but for the relationship between the person who takes such action and the individual against whom such action is taken." § 13981(d)(2).

       Further clarifying the broad scope of § 13981's civil remedy, subsection (e)(2) states that "[n]othing" in this section requires a prior criminal complaint, prosecution, or conviction to establish the elements of a cause of action under subsection (c) of this section." And subsection (e)(3) provides a § 13981 litigant with a choice of forums: Federal and state courts "shall have concurrent jurisdiction" over complaints brought under the section.

        Although the foregoing language of § 13981 covers a wide swath of criminal conduct, Congress placed some limitations on the section's federal civil remedy. Subsection (e)(1) states that "[n]othing" in this section entitles a person to a cause of action under subsection (c) of this section for random acts of violence unrelated to gender or for acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender." Subsection (e)(4) further states that § 13981 shall not be construed "to confer on the courts of the United States jurisdiction over any State law claim seeking the establishment of a divorce, alimony, equitable distribution of marital property, or child custody decree."

       [2a] Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution. "The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176, 2 L Ed 60 (1803) (Marshall, C. J.). Congress explicitly identified the sources of federal authority on which it relied in enacting § 13981. It said that a "federal civil rights cause of action" is established "pursuant" to the affirmative power of Congress . . . under section 5 of the Fourteenth Amendment to the Constitution, as well as under section 8 of Article I of the Constitution." 42 USC § 13981(a) [42 USCS § 13981(a)]. We address Congress' authority to enact this remedy under each of these constitutional provisions in turn.

II

        [2b] Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds. See United States v. Lopez, 514 US, at 568, 577-578, 131 L Ed 2d 626, 115 S Ct 1624 (Kennedy, J., concurring); United States v. Harris, 106 US at 635, 27 L Ed 290, 1 S Ct 601. With this presumption of constitutionality in mind, we turn to the question whether § 13981 falls within Congress' power under Article I, § 8, of the Constitution.

       Brzonkala and the United States rely upon the third clause of the Article, which gives Congress power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

       [3] As we discussed at length in Lopez, our interpretation of the Commerce Clause has changed as our Nation has developed. See Lopez, 514 US, at 552-557, 131 L Ed 2d 626, 115 S Ct 1624; id., at 568-574, 131 L Ed 2d 626, 115 S Ct 1624 (Kennedy, J., concurring); id., at 584, 593-599, 131 L Ed 2d 626, 115 S Ct 1624 (Thomas, J., concurring). We need not repeat that detailed review of the Commerce Clause's history here; it suffices to say that, in the years since NLRB v. Jones & Laughlin Steel Corp., 301 US 1, 81 L Ed 893, 57 S Ct 615 (1937), Congress has had considerably greater latitude in regulating conduct and transactions under the Commerce Clause than our previous case law permitted. See Lopez, 514 US, at 555-556, 131 L Ed 2d 626, 115 S Ct 1624; id., at 573-574, 131 L Ed 2d 626, 115 S Ct 1624 (Kennedy, J., concurring).

        Lopez emphasized, however, that even under our modern, expansive interpretation of the Commerce Clause, Congress' regulatory authority is not without effective bounds. Id., at 557,131 L Ed 2d 626, 115 S Ct 1624.

       "[E]ven [our] modern-era precedents which have expanded congressional power under the Commerce Clause confirm that this power is subject to outer limits. In Jones & Laughlin Steel, the Court warned that the scope of the interstate commerce power 'must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.'" Id., at 556-557, 131 L Ed 2d 626, 115 S Ct 1624 (quoting Jones & Laughlin Steel, supra, at 37, 81 L Ed 893, 57 S Ct 615).

       [4] As we observed in Lopez, modern Commerce Clause jurisprudence has "identified three broad categories of activity that Congress may regulate under its commerce power." 514 US, at 558, 131 L Ed 2d 626, 115 S Ct 1624 (citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 US 264, 276-277, 69 L Ed 2d 1, 101 S Ct 2352 (1981); Perez v. United States, 402 US 146, 150, 28 L Ed 2d 686, 91 S Ct 1357 (1971)). "First, Congress may regulate the use of the channels of interstate commerce." 514 US, at 558 131 L Ed 2d 626, 115 S Ct 1624 (citing Heart of Atlanta Motel, Inc. v. United States, 379 US 241, 256, 13 L Ed 2d 258, 85 S Ct 348 (1964); United States v. Darby, 312 US 100, 114, 85 L Ed 609, 61 S Ct 451 (1941)). "Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." 514 US, at 558 131 L Ed 2d 626, 115 S Ct 1624 (citing Shreveport Rate Cases, 234 US 342, 58 L Ed 1341, 34 S Ct 833 (1914); Southern R. Co. v. United States, 222 US 20, 56 L Ed 72, 32 S Ct 2, 56 L Ed 72 (1911); Perez, supra, at 150, 28 L Ed 2d 686, 91 S Ct 1357). "Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce." 514 US, at 558-559 131 L Ed 2d 626, 115 S Ct 1624 (citing Jones & Laughlin Steel, supra, at 37, 81 L Ed 893, 57 S Ct 615).

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

       [5a, 6a] Since Lopez most recently canvassed and clarified our case law governing this third category of Commerce Clause regulation, it provides the proper framework for conducting the required analysis of § 13981. In Lopez, we held that the Gun-Free School Zones Act of 1990, 18 USC § 922(q)(1)(A)[18 USCS § 922(q)(1)(A)], which made it a federal crime to knowingly possess a firearm in a school zone, exceeded Congress' authority under the Commerce Clause. See 514 US, at 551, 131 L Ed 2d 626, 115 S Ct 1624. Several significant considerations contributed to our decision.

       First, we observed that § 922(q) was "a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms." Id., 561, 131 L Ed 2d 626, 115 S Ct 1624. Reviewing our case law, we noted that "we have upheld a wide variety of congressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected interstate commerce." Id., at 559, 131 L Ed 2d 626, 115 S Ct 1624. Although we cited only a few examples, including Wickard v. Filburn, 317 US 111, 87 L Ed 122, 63 S Ct 82 (1942); Hodel, supra; Perez, supra; Katzenbach v. McClung, 379 US 294, 13 L Ed 2d 290, 85 S Ct 377 (1964); and Heart of Atlanta Motel, supra, we stated that the pattern of analysis is clear. Lopez, 514 U.S. at 559-560. 131 L Ed 2d 626, 115 S Ct 1624. "Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." Id., at 560, 131 L Ed 2d 626, 115 S Ct 1625.

       [5b] Both petitioners and Justice Souter's dissent downplay the role that the economic nature of the regulated activity plays in our Commerce Clause analysis. But a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case. See, e.g., id., at 551, 131 L Ed 2d 626, 115 S Ct 1624 ("The Act [does not] "regulat[e] a commercial activity"), 560 131 L Ed 2d 626, 115 S Ct 1624 ("Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not"), 561 131 L Ed 2d 626, 115 S Ct 1624 ("Section 922(q) is not an essential part of a larger regulation of economic activity"), 566 131 L Ed 2d 626, 115 S Ct 1624 ("Admittedly, a determination whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty. But, so long as Congress' authority is limited to those powers enumerated in the Constitution, and so long as those enumerated powers are interpreted as having judicially enforceable outer limits, congressional legislation under the Commerce Clause always will engender 'legal uncertainty'"), 567 131 L Ed 2d 626, 115 S Ct 1624("The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce"); see also id., at 573-574 131 L Ed 2d 626, 115 S Ct 1624 (Kennedy, J., concurring) (stating that Lopez did not alter our "practical conception of commercial regulation" and that Congress may "regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy"), 577 131 L Ed 2d 626, 115 S Ct 1624 ("Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur"), 580 131 L Ed 2d 626, 115 S Ct 1624 ("[U]nlike the earlier cases to come before the Court here neither the actors nor their conduct has a commercial character, and neither the purposes nor the design of the statute has an evident commercial nexus. The statute makes the simple possession of a gun within 1,000 feet of the grounds of the school a criminal offense. In a sense any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far" (citation omitted)). Lopez's review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity's substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor. See id., at 559-560, 131 L Ed 2d 626, 115 S Ct 1624.

        [6b] The second consideration that we found important in analyzing § 922(q) was that he statute contained "no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce." Id. at 562, 131 L Ed 2d 626, 115 S Ct 1624 . Such a jurisdictional element may establish that the enactment is in pursuance of Congress' regulation of interstate commerce.

        [6c, 7] Third, we noted that neither § 922(q) "'nor its legislative history contains express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.'" Ibid. (quoting Brief for United States, O.T. 1994, No. 93-1260, pp. 5-6). While "Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce," 514 US, at 562 131 L Ed 2d 626, 115 S Ct 1624 (citing McClung, 379 US, at 304, 13 L Ed 2d 290, 85 S Ct 377; Perez, 402 US, at 156, 28 L Ed 2d 686, 91 S Ct 1357), the existence of such findings may "enable us to evaluate the legislative judgment that the activity in question substantially affects interstate commerce, even though no such substantial effect [is] visible to the naked eye." 514 US, at 563, 131 L Ed 2d 626, 115 S Ct 1624

        [6d] Finally, our decision in Lopez rested in part on the fact that the link between gun possession and a substantial effect on interstate commerce was attenuated. Id., at 563-567, 131 L Ed 2d 626, 115 S Ct 1624. The United States argued that the possession of guns may lead to violent crime, and that violent crime "can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe." Id., at 563-564, 131 L Ed 2d 626, 115 S Ct 1624 (citation omitted). The Government also argued that the presence of guns at schools poses a threat to the educational process, which in turn threatens to produce a less efficient and productive workforce, which will negatively affect national productivity and thus interstate commerce. Ibid.

       We rejected these "costs of crime" and "national productivity" arguments because they would permit Congress to "regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce." Id., at 564, 131 L Ed 2d 626, 115 S Ct 1624. We noted that, under this but-for reasoning:

       "Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the[se] theories . . . , it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate." Ibid.

       [5c, 8] With these principles underlying our Commerce Clause jurisprudence as reference points, the proper resolution of the present cases is clear. Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature. See, e.g., id., at 559-560, 131 L Ed 2d 626, 115 S Ct 1624, and the cases cited therein.

       [6e, 9] Like the Gun-Free School Zones Act at issue in Lopez, § 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce. Although Lopez makes clear that such a jurisdictional element would lend support to the argument that § 13981 is sufficiently tied to interstate commerce, Congress elected to cast § 13981's remedy over a wider, and more purely intrastate, body of violent crime.

       [6f, 10] In contrast with the lack of congressional findings that we faced in Lopez, § 13981 is supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families. See, e.g., H. R. Conf. Rep. No. 103-711, p 385 (1994); S. Rep. No. 103- 138, p 40 (1993); S. Rep. No. 101-545, p 33 (1990). But the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. As we stated in Lopez, "'[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.'" 514 US, at 557, n 2, 131 L Ed 2d 626, 115 S Ct 1624 (quoting Hodel, 452 US, at 311, 69 L Ed 2d 1, 101 S Ct 2352 (Rehnquist, J., concurring in judgment)). Rather, "'[w]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.'" 514 US, at 557, n 2, 131 L Ed 2d 626, 115 S Ct 1624 (quoting Heart of Atlanta Motel, 379 US, at 273, 13 L Ed 2d 258, 85 S Ct 348 (Black, J., concurring)).

        In these cases, Congress' findings are substantially weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution's enumeration of powers. Congress found that gender-motivated violence affects interstate commerce

       "by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce; . . . by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products." H. R. Conf. Rep. No. 103-711, at 385.

       Accord, S. Rep. No. 103-138, at 54. Given these findings and petitioners' arguments, the concern that we expressed in Lopez, that Congress might use the Commerce Clause to completely obliterate the Constitution's distinction between national and local authority seems well founded. See Lopez, supra, at 564, 131 L Ed 2d 626, 115 S Ct 1624. The reasoning that petitioners advance seeks to follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has alwaysbeen the prime object of the States' police power) to every attenuated effect upon interstate commerce. If accepted, petitioners' reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence since gender-motivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part.

       [11a, 12a] Petitioners' reasoning, moreover, will not limit Congress to regulating violence but may, as we suggested in Lopez, be applied equally as well to family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national econ omy is undoubtedly significant. Congress may have recognized this specter when it expressly precluded § 13981 from being used in the family law context. See 42 USC § 13981(e)(4). Under our written Constitution, however, the limitation of congressional authority is not solely a matter of legislative grace. See Lopez, supra, at 575-579, 131 L Ed 2d 626, 115 S Ct 1624 (Kennedy, J., concurring); Marbury, 1 Cranch at 176-178, 2 L Ed 60.

       [13a, 14a] We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local. Lopez, 514 US, at 568, 131 L Ed 2d 626, 115 S Ct 1624 (citing Jones & Laughlin Steel, 301 US, at 30, 81 L Ed 893, 57 S Ct 615). In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. See, e.g., Cohens v. Virginia, 6 Wheat 264, 426, 428, 5 L Ed 257 (1821) (Marshall, C. J.) (stating that Congress "has no general right to punish murder committed within any of the States," and that it is "clear . . . that congress cannot punish felonies generally"). Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims. See, e.g., Lopez, 514 US, at 566, 131 L Ed 2d 626, 115 S Ct 1624 ("The Constitution . . . withhold[s] from Congress a plenary police power"); id., at 584-585, 131 L Ed 2d 626, 115 S Ct 1624 (Thomas, J., concurring) ("[W]e always have rejected readings f the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power"), 596-597, and n 6, 131 L Ed 2d 626, 115 S Ct 1624 (noting that the first Congresses did not enact nationwide punishments for criminal conduct under the Commerce Clause).

III

       [1b, 13b] Because we conclude that the Commerce Clause does not provide Congress with authority to enact § 13981, we address petitioners' alternative argument that the section's civil remedy should be upheld as an exercise of Congress' remedial power under § 5 of the Fourteenth Amendment. As noted above, Congress expressly invoked the Fourteenth Amendment as a source of authority to enact § 13981.

        Petitioners' § 5 argument is founded on an assertion that there is pervasive bias in various state justice systems against victims of gender-motivated violence. This assertion is supported by a voluminous congressional record. Specifically, Congress received evidence that many participants in state justice systems are perpetuating an array of erroneous stereotypes and assumptions. Congress concluded that these discriminatory stereotypes often result in insufficient investigation and prosecution of gender-motivated crime, inappropriate focus on the behavior and credibility of the victims of that crime, and unacceptably lenient punishments for those who are actually convicted of gender-motivated violence. See H. R. Conf. Rep. No. 103-711, at 385-386; S. Rep. No. 103-138, at 38, 41-55; S. Rep. No. 102-197, at 33-35, 41, 43-47. Petitioners contend that this bias denies victims of gender-motivated violence the equal protection of the laws and that Congress therefore acted appropriately in enacting a private civil remedy against the perpetrators of gender-motivated violence to both remedy the States' bias and deter future instances of discrimination in the state courts.

       [16] As our cases have established, state-sponsored gender discrimination violates equal protection unless it "'serves "important governmental objectives and . . . the discriminatory means employed" are "substantially related to the achievement of those objectives."'" United States v. Virginia, 518 US 515, 533, 135 L Ed 2d 735, 116 S Ct 2264 (1996) (quoting Mississippi Univ. for Women v. Hogan, 458 US 718, 724, 73 L Ed 2d 1090, 102 S Ct 3331 (1982), in turn quoting Wengler v. Druggists Mut. Ins. Co., 446 US 142, 150, 64 L Ed 2d 107, 100 S Ct 1540 (1980)). See also Craig v. Boren, 429 US 190, 198-199, 50 L Ed 2d 397, 97 S Ct 451 (1976). However, the language and purpose of the Fourteenth Amendment place certain limitations on the manner in which Congress may attack discriminatory conduct. These limitations are necessary to prevent the Fourteenth Amendment from obliterating the Framers' carefully crafted balance of power between the States and the National Government. See Flores, supra at 520-524, 138 L Ed 2d 624, 117 S Ct 2157 (reviewing the history of the Fourteenth Amendment's enactment and discussing the contemporary belief that the Amendment "does not concentrate power in the general government for any purpose of police government within the States") (quoting T. Cooley, Constitutional Limitations 294, n 1 (2d ed. 1871)). Foremost among these limitations is the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action. The principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 US 1, 13, n 12, 92 L Ed 1161, 68 S Ct 836,(1948).

        Petitioners contend that two more recent decisions have in effect overruled this longstanding limitation on Congress' § 5 authority. They rely on United States v. Guest, 383 US 745, 16 L Ed 2d 239, 86 S Ct 1170 (1966), for the proposition that the rule laid down in the Civil Rights Cases is no longer good law. In Guest, the Court reversed the construction of an indictment under 18 USC § 241 [18 USCS § 241], saying in the course of its opinion that "we deal here with issues of statutory construction, not with issues of constitutional power." 383 US, at 749, 16 L Ed 2d 239, 86 S Ct 1170. Three Members of the Court, in a separate opinion by Justice Brennan, expressed the view that the Civil Rights Cases were wrongly decided, and that Congress could under § 5 prohibit actions by private individuals. 383 US, at 774, 16 L Ed 2d 239, 86 S Ct 1170 (opinion concurring in part and dissenting in part). Three other Members of the Court, who joined the opinion of the Court, joined a separate opinion by Justice Clark which in two or three sentences stated the conclusion that Congress could punish all conspiracies -- with or without state action -- that interfere with Fourteenth Amendment rights." Id., at 762, 16 L Ed 2d 239, 86 S Ct 1170 (concurring opinion). Justice Harlan, in another separate opinion, commented with respect to the statement by these Justices:

        "The action of three of the Justices who joined the Court's opinion in nonetheless cursorily pronouncing themselves on the far-reaching constitutional questions deliberately not reached in Part II seems to me, to say the very least, extraordinary." Id., at 762, n 1,16 L Ed 2d 239, 86 S Ct 1170 (opinion concurring in part and dissenting in part).

        Though these three Justices saw fit to opine on matters not before the Court in Guest, the Court had no occasion to revisit the Civil Rights Cases and Harris, having determined "the indictment [charging private individuals with conspiring to deprive blacks of equal access to state facilities] in fact contained an express allegation of state involvement." 383 US, at 756, 16 L Ed 2d 239, 86 S Ct 1170 . The Court concluded that the implicit allegation of "active connivance by agents of the State" eliminated any need to decide "the threshold level that state action must attain in order to create rights under the Equal Protection Clause." Ibid. All of this Justice Clark explicitly acknowledged. See id., at 762, 16 L Ed 2d 239, 86 S Ct 1170 (concurring opinion) ("The Court's interpretation of the indictment clearly avoids the question whether Congress, by appropriate legislation, has the power to punish private conspiracies that interfere with Fourteenth Amendment rights, such as the right to utilize public facilities").

        To accept petitioners' argument, moreover, one must add to the three Justices joining Justice Brennan's reasoned explanation for his belief that the Civil Rights Cases were wrongly decided, the three Justices joining Justice Clark's opinion who gave no explanation whatever for their similar view. This is simply not the way that reasoned constitutional adjudication proceeds. We accordingly have no hesitation in saying that it would take more than the naked dicta contained in Justice Clark's opinion, when added to Justice Brennan's opinion, to cast any doubt upon the enduring vitality of the Civil Rights Cases and Harris.

        Petitioners alternatively argue that, unlike the situation in the Civil Rights Cases, here there has been gender-based disparate treatment by state authorities, whereas in those cases there was no indication of such state action. There is abundant evidence, however, to show that the Congresses that enacted the Civil Rights Acts of 1871 and 1875 had a purpose similar to that of Congress in enacting § 13981: There were state laws on the books bespeaking equality of treatment, but in the administration of these laws there was discrimination against newly freed slaves. The statement of Representative Garfield in the House and that of Senator Sumner in the Senate are representative:

        "[T]he chief complaint is not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them." Cong. Globe, 42d Cong., 1st Sess., App. 153(1871) (statement of Rep. Garfield).

        "The Legislature of South Carolina has passed a law giving precisely the rights contained in your 'supplementary civil rights bill.' But such a law remains a dead letter on her statute-books, because the State courts, comprised largely of those whom the Senator wishes to obtain amnesty for, refuse to enforce it." Cong. Globe, 42d Cong., 2d Sess., 430 (1872) (statement of Sen. Sumner).

See also, e.g., Cong. Globe, 42d Cong., 1st Sess., at 653 (statement of Sen. Osborn); id., at 457 (statement of Rep. Coburn); id., at App. 78 (statement of Rep. Perry); 2 Cong. Rec. 457 (1874) (statement of Rep. Butler); 3 Cong. Rec. 945 (1875)(statement of Rep. Lynch).

        [17] But even if that distinction were valid, we do not believe it would save § 13981's civil remedy. For the remedy is simply not "corrective in its character, adapted to counteract and redress the operation of such prohibited state laws or proceedings of state officers." Civil Rights Cases, 109 US, at 18, 27 L Ed 835, 3 S Ct 18. Or, as we have phrased it in more recent cases, prophylactic legislation under § 5 must have a "'congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 US 627, 639, 144 L Ed 2d 575, 119 S Ct 2199 (1999); Flores, 521 US, at 526, 138 L Ed 2d 624, 117 S Ct 2157. Section 13981 is not aimed at proscribing discrimination by officials which the Fourteenth Amendment might not itself proscribe; it is directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias.

        In the present cases, for example, § 13981 visits no consequence whatever on any Virginia public official involved in investigating or prosecuting Brzonkala's assault. The section is, therefore, unlike any of the § 5 remedies that we have previously upheld.

       [1c] For these reasons, we conclude that Congress' power under § 5 does not extend to the enactment of § 13981.

IV

       [1d] Petitioner Brzonkala's complaint alleges that she was the victim of a brutal assault. But Congress' effort in § 13981 to provide a federal civil remedy can be sustained neither under the Commerce Clause nor under § 5 of the Fourteenth Amendment. If the allegations here are true, no civilized system of justice could fail to provide her a remedy for the conduct of respondent Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States. The judgment of the Court of Appeals is Affirmed.

[Four justices dissented from the majority]

       Justice SOUTER, with whom Justice STEVENS, Justice GINSBURG, and Justice BREYER, join, dissenting.

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

I

        Our cases, which remain at least nominally undisturbed, stand for the following propositions. Congress has the power to legislate with regard to activity that, in the aggregate, has a substantial effect on interstate commerce. See Wickard v. Filburn, 317 US 111, 124-128, 87 L Ed 122, 63 S Ct 82 (1942); Hodel v. Virginia Surface Mining & Reclamation Assn., 452 US 264, 277, 69 L Ed 2d 1, 101 S Ct 2352 (1981). The fact of such a substantial effect is not an issue for the courts in the first instance, ibid., but for the Congress, whose institutional capacity for gathering evidence and taking testimony far exceeds ours. By passing legislation, Congress indicates its conclusion, whether explicitly or not, that facts support its exercise of the commerce power. The business of the courts is to review the congressional assessment, not for soundness but simply for the rationality of concluding that a jurisdictional basis exists in fact. See ibid. Any explicit findings that Congress chooses to make, though not dispositive of the question of rationality, may advance judicial review by identifying factual authority on which Congress relied. Applying those propositions in these cases can lead to only one conclusion.

        One obvious difference from United States v. Lopez, 514 US 549, 131 L Ed 2d 626, 115 S Ct 1624 (1995), is the mountain of data assembled by Congress, here showing the effects of violence against women on interstate commerce. Passage of the Act in 1994 was preceded by four years of hearings, which included testimony from physicians and law professors; from survivors of rape and domestic violence; and from representatives of state law enforcement and private business. The record includes reports on gender bias from task forces in 21 States, and we have the benefit of specific factual findings in the eight separate Reports issued by Congress and its committees over the long course leading to enactment. Compare Hodel, 452 US, at 278-279, 69 L Ed 2d 1, 101 S Ct 2352 (noting "extended hearings," "vast amounts of testimony and documentary evidence," and "years of the most thorough legislative consideration").

       With respect to domestic violence, Congress received evidence for the following findings:

        "Three out of four American women will be victims of violent crimes sometime during their life." H. R. Rep. No. 103-395 p 25 (1993) (citing U.S. Dept. of Justice, Report to the Nation on Crime and Justice 29 (2d ed. 1988)).

        "Violence is the leading cause of injuries to women ages 15 to 44 . . . ." S. Rep. No. 103-138, p 38 (1993) (citing Surgeon General Antonia Novello, From the Surgeon General, U.S. Public Health Services, 267 JAMA 3132 (1992)).

       "[A]s many as 50 percent of homeless women and children are fleeing domestic violence." S. Rep. No. 101-545, p 37 (1990) (citing E. Schneider, Legal Reform Efforts for Battered Women: Past, Present, and Future (July 1990)).

       "Since 1974, the assault rate against women has outstripped the rate for men by at least twice for some age groups and far more for others." S. Rep. No. 101-545, at 30 (citing Bureau of Justice Statistics, Criminal Victimization in the United States (1974) (Table 5)).

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

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

       "Over 1 million women in the United States seek medical assistance each year for injuries sustained [from] their husbands or other partners." S. Rep. No. 101-545, at 37 (citing Stark & Flitcraft, Medical Therapy as Repression: The Case of the Battered Woman, Health & Medicine (Summer/Fall 1982).

       "Between 2,000 and 4,000 women die every year from [domestic] abuse." S. Rep. No. 101-545, at 36 (citing Schneider, supra).

       "[A]rrest rates may be as low as 1 for every 100 domestic assaults." S. Rep. No. 101-545, at 38 (citing Dutton, Profiling of Wife Assaulters: Preliminary Evidence for Trimodal Analysis, 3 Violence and Victims 5-30 (1988)).

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

       "[E]stimates suggest that we spend $ 5 to $ 10 billion a year on health care, criminal justice, and other social costs of domestic violence." S. Rep. No. 103-138, at 41 (citing Biden, Domestic Violence: A Crime, Not a Quarrel, Trial 56 (June 1993)).

       The evidence as to rape was similarly extensive, supporting these conclusions:

       "[The incidence of] rape rose four times as fast as the total national crime rate over the past 10 years." S. Rep. No. 101-545, at 30 (citing Federal Bureau of Investigation Uniform Crime Reports (1988)).

       "According to one study, close to half a million girls now in high school will be raped before they graduate." S. Rep. No. 101-545, at 31 (citing R. Warshaw, I Never Called it Rape 117 (1988)).

       "[One hundred twenty-five thousand] college women can expect to be raped during this -- or any -- year." S. Rep. No. 101-545, at 43 (citing testimony of Dr. Mary Koss before the Senate Judiciary Committee, Aug. 29, 1990).

       "[T]hree-quarters of women never go to the movies alone after dark because of the fear of rape and nearly 50 percent do not use public transit alone after dark for the same reason." S. Rep. No. 102-197, p 38 (1991) (citing M. Gordon & S. Riger, The Female Fear 15 (1989)).

       "[Forty-one] percent of judges surveyed believed that juries give sexual assault victims less credibility than other crime victims." S. Rep. No. 102-197, at 47 (citing Colorado Supreme Court Task Force on Gender Bias in the Courts, Gender Justice in the Colorado Courts 91 (1990)).

       "Less than 1 percent of all [rape] victims have collected damages." S. Rep. No. 102-197, at 44 (citing report by Jury Verdict Research, Inc.).

       "'[A]n individual who commits rape has only about 4 chances in 100 of being arrested, prosecuted, and found guilty of any offense.'" S. Rep. No. 101-545, at 33, n 30 (quoting H. Feild & L. Bienen, Jurors and Rape: A Study in Psychology and Law 95 (1980)).

       "Almost one-quarter of convicted rapists never go to prison and another quarter received sentences in local jails where the average sentence is 11 months." S. Rep. No. 103-138, at 38 (citing Majority Staff Report of Senate Committee on the Judiciary, The Response to Rape: Detours on the Road to Equal Justice, 103d Cong., 1st Sess., 2 (Comm. Print 1993)).

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

        Based on the data thus partially summarized, Congress found that

        "crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce . . . [,] by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products . . . ." H. R. Conf. Rep. No. 103-711, p 385 (1994).

        Congress thereby explicitly stated the predicate for the exercise of its Commerce Clause power. Is its conclusion irrational in view of the data amassed? True, the methodology of particular studies may be challenged, and some of the figures arrived at may be disputed. But the sufficiency of the evidence before Congress to provide a rational basis for the finding cannot seriously be questioned.

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