UNITED STATES V MORRISON AND THE EMPEROR S NEW CLOTHES

UNITED STATES V. MORRISON AND THE EMPEROR'S NEW CLOTHES ANA MARIA MERICO-STEPHENS* "The judge is the only government official whose authority is supposed to be explained by his reasons; he is the only authority to claim that his reasons are part of his authority. ,,** PREFACE This essay is about federalism. How is that for an alarming forewarning? The essay is not, of course, about the whole eerie subject of federalism. It is about less than that. Significantly less. It is about one application of judicial federalism and what it reveals about a conception of the judicial role. It is about how United States v. Morrison! leads some to admire the Emperor's New Clothes while others silently watch the Emperor parade down Main Street confused about what they observe. Morrison challenges our under­ standing of congressional power under the Commerce Clause, calls into ques­ tion reliance on broad doctrinal patterns, and raises doubts about the institutional expectations we have of the Supreme Court. All of this in the name of "Our Federalism's"2 "First Principles."3 Not long ago the subject matter triggered spontaneous yawns. Federalism was simply not a theme of impassioned debate. 4 Such reactions are rare " f * Assistant Professor of Law, The University of Arizona, James E. Rogers College of Law. J.D. 1995, University of Michigan Law School; B.A. 1992, Univcrsity of Cincinnati. I would like to thank my colleagues. Barbara Atwood. Ellen Bublick, Robert J. Glennon, Kenney Hegland, Mona Hymel, Kay Kavanagh, Leslye Obiora, Dalia Tsuk. and Dean Toni Massaro for their thoughtful comments and feedback on an earlier draft. I also thank University of Arizona law students Michelle Vaitkus and Blair Johanson for their helpful research assistance, Danielle Kamps and Amy S. Ruskin for tackling the footnotes (and more). and Stephen Golden for thoughtful editing advice. ** Charles Fried, Scholars alld Judges: Reasoll and Power, 23 HARV. J. L. & PUB. PCll'y 807. 1;32 (2000). I. 529 U.S. 598 (2000). 2. Justice Black first used the phrase "Our Federalism" in Younger v. Harris. 401 U.S. 37. 44 (1971). to describe the conviction that "the National Government will fare best if the Statcs and their institutions arc left free to perform their separate functions in their separate ways" without federal government interference. Seventeenth and eighteenth cen­ tury liberal political thought brought forth the idea that liberty could be preserved best by decentralization; that human liberty could be enhanced by governmental inaction and indi­ rection. thus envisioning a government of limited and enumerated powers. See LAURENCE TRIBE. AMERICAN CONSTITUTIONAL LAW 7 (3d ed. 2000). 3. The Rehnquist Court has used the term "first principles" to describe a govern­ mental structure in which meaningful limits to national power exist and in which the states playa significant role. See, e.g., United States v. Lopez. 514 U.S. 549. 552-53 (1995). 4. See, e.g., Melvyn Durchslag, Accommodation by Declaratioll. 33 Loy. L.A. L. REV. 1375. 1375 (2000) (stating that federalism discussions prior to Lopez were "ho-hum" in constitutional law classes; but now "It]he classroom debate is ... anything but boring"). 735 736 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 these days. Federalism is hot, fashionable, and maddeningly convoluted. It has infiltrated our national ethos with a vigor not seen since the New Deal­ perhaps not since the Civil War. S The Rehnquist Court's commitment to "first principles" has energized the debate, mobilizing an onslaught of com­ mentary both celebrating federalism's virtues and inveighing its fallacies. But there is Federalism (with a capital "F"), and then there is federalism (without it). Although, for the uninitiated, Federalism "conjures up images of Fourth of July parades down Main Street, drugstore soda fountains. and family farms with tire swings in the front yard,"6 the federalism of current prominence is of a different ilk than the one which leads us to romanticize the structure of our government. It is a federalism of the judicial type. There exists a dissonance between the ideals of judicial federalism and the political realities of the other type, which leads to interpretive difficulties. The original meaning of Federalism is hardly clear. At a most rudimen­ tary level it is a descriptive term for the nature of our governmental struc­ ture: one in which the power is divided between the states and the federal government (and the people). It is, above all, a political compromise. As Professor Schuck has stated, our federalism map was drawn with "blood and iron and not by experts in public administration. [This leads to an] allocation of responsibilities among the different levels of government [that] is irra­ tional in many respects."7 The explanation for irrational lines is partly histor­ ical and partly political. The competency of the state and the federal governments to address social, economic, or criminal problems wanes or es­ calates with our episodic commitments to myriad causes. s Thus, what may have seemed politically intolerable for the States to handle in the 1960's may seem less so today. And what may have been politically illegitimate for the federal government to regulate in 1920 is beyond question in a world-market economy. From this one could reasonably postulate that it appears to be undesirable, if not inopportune, to choose a particular historical or political moment to constitutionalize a categorical structural limitation to federal power. But judicial federalism is different. Although there is a consensus that our federalism both emerges from and remains a political pact and not an admin­ istrative regulation,9 the Rehnquist Court firmly believes that categorical fed­ eralism lines not only can be drawn, but that they should be drawn by the 5. PETER SCHLICK, THE LIMITS OF LAW: ESSAYS ON DEMOCRATIC GOVERNANCE 93 (2000). 6. Edward Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neuro­ sis, 41 UCLA L. REV. 903, 906 (1994). 7. SCHUCK, supra note 5, at 95. 8. See, e.g., Barry Friedman, The History of the Countermajoritarian Difficulty, Part Four; Law's Politics, 148 U. PA. L. REV. 971,977-81 (2000) (examining the legitimacy of constitutional change in light of changing historical and doctrinal understandings and visions). 9. See, e.g., Edward Rubin, The Fundamentality and Irrelevance of Federalism, 13 GA. ST. U. L. REV. 1009, 1010 (1997) (explaining that the fundamental question in federal­ ism is to resolve the issue of collective decision making). 2001] UNITED STATES v. MORRISON 737 Court. JO Translating structural values into coherent doctrinal rules is a he­ roic, and some even think illusory, aspiration. But first principles federalism reflects such a deep commitment to certain hypotheses about the nature of government and the corresponding structural priorities that ought to prevail in light of those, that the Rehnquist Court has convinced itself that judicial federalism can explain and implement the Federalism of the other type. So the attempt to rationalize what is irrational (because political) in order to decode it into complementary principles generates a federalism doctrine that fatigues the endurance of any interested observer. l1 And the Court's stout­ 10. Justice O'Connor expressed this view most explicitly in her dissenting opinion in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 580 (1985). 11. Current federalism discourse reminds me of a law school class where the professor instructed us to read a particularly confounding case, then dim the lights, drink a glass of wine, and enjoy the rest of the evening. "Resign yourselves to never understanding what you just read," he admonished us. "It is not you," he assured us, however. "This area of the law is simply a mess." As with the subject matter we covered in that class, the Supreme Court's current federalism doctrine is bewildering. I previously defined the Court's new federalism as "mystical categorical federalism" as a short-hand description for the criti­ cism that this new doctrine is formalist and has a quality of conviction that is unsupported by constitutional text, precedent, or history. "In other words, it lacks origins more sub­ stantial than the Court's current policy preferences." And, it is "categorical" in that the pronouncements it makes about the mandatory dictates of our federal structure are un­ yielding. See Ana Maria Merico-Stephens, Of Maine's Sovereignty, Alden's Federalism, and the Myth of Absolute Principles: The Newest Oldest Question of Constitutional Law, 33 U.c. DAVIS L. REV. 325, 329-30 (2000); see also Symposium, Federalism After Alden, 31 RUTGERS L. J. 631 (2000); Symposium, State Sovereign Immunity and the Eleventh Amend­ ment, 75 NOTRE DAME L. REV. 817 (2000); Symposium on New Directions in Federalism, 33 Loy. L.A. L. REV. 1275 (2000); see also Frank Cross, Realism About Federalism, 74 N.Y.U. L. REV. 1304, 1305 (1999); Carlos Manuel Vazquez, Sovereign Immunity, Due Pro­ cess, and the Alden Trilogy, 109 YALE L.J. 1927 (2000); Larry Kramer. Puttitzg the Politics Back Into the Political Safeguards of Federalism. 100 COLlJM. L. REV. 215, 290-93 (2000). First principles federalism refers to the cases in which, beginning in 1992, the Court has struck down federal legislation on the grounds that it exceeded a congressional power either because of a state sovereignty presumption or because an enumerated power simply did not support the statute. or both. See, e.g., New York v. United States, 505 U.S. 144 (1992) (striking down the take-title provision of the Low-Level Radioactive Waste Policy Amendments Act on Tenth Amendment Grounds); United States v. Lopez, 514 U.S. 549 (1995) (striking down the Gun Free School Zones Act on the grounds that Congress had exceeded its commerce power and infringed on an area of traditional state concern); Printz v. United States. 521 U.S. 898 (1997) (striking down portions of the Brady Handgun and Violence Prevention Act as violating the Tenth Amendment); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (striking down a portion of the Indian Gaming Regulatory Act as violative of the Tenth and Eleventh Amendments); Idaho v. Coeur D'Alene Tribe, 521 U.S. 261 (1997) (dismissing a lawsuit against the state of Idaho brought by the Coeur D'Alene Tribe on Eleventh Amendment grounds); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (striking down a portion of the Age Discrimination in Employment Act as violative of the Tenth and Eleventh Amendments); Alden v. Maine, 527 U.S. 706 (1999) (holding that the Fair Labor Standards Act cannot be enforced against the States in the State's own courts); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627 (1999) (holding that federal law that abrogated states' immunity per­ mitting patent infringement claims was beyond Congress's power both under the Com­ merce Clause and under Section 5 of the Fourteenth Amendment); College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999); see also City of I I. I 738 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27. No.4 I ,I hearted efforts to manage through one what is unmanageable in the other, lead commentators to struggle to define and identify a coherent theoretical basis for the Rehnquist Court's "first principles" decisions. This interpretive dilemma can be illustrated by examining the Supreme Court's latest decision limiting congressional power: United States v. Morri­ son. 12 In Morrison, the Court struck down the civil remedy provision of the Violence Against Women Act D (VAWA) as an unconstitutional exercise of the commerce power. 14 Though confronted with a weighty legislative record documenting the impact of gender-motivated violence on interstate com­ merce,lS the Court held that this type of violence was not an economic or commercial activity that Congress could regulate. And it could not regulate it particularly because it involved an area that was traditionally reserved to the states. 16 The decision reflected a structural concern that was simply in­ consistent with prior caselaw. Prior to Morrison there existed a settled constitutional understanding that Congress could, under the Commerce Clause, regulate certain local activities, even if these were considered to be traditional state functions. The prevail­ ing rule was that if a rational basis existed for concluding that national aggre­ gation of an activity would have an impact on interstate commerce, then Congress could reach it. It is with this understanding that the Court has up­ held congressional regulation of racial discrimination by restaurants and hoBoeme v. Flores, 521 U.S. 507 (1997), in which the Court struck down the Religious Free­ dom Restoration Act of 1993 (RFRA), 42 U.S.C § 2000bb (1994), on the grounds that Congress had exceeded its Fourteenth Amendment. Section Five powers when giving sub­ stantive definition to "freedom of religion," a role which is reserved exclusively for the Court under Marbury and Cooper v. Aaron. 358 U.S. 1, 18 (1958) ("the federal judiciary is supreme in the exposition of the law of the Constitution."). The Fourteenth Amendment, the Court held, only gives Congress power to remedy past violations of the Constitution, and it requires Congress to create remedies thal are "congruent and proportional" to the alleged violation. The Court's concern for expanded congressional power in this case cen­ tered on "requir[ingJ searching judicial scrutiny of state law," which would amount to a "considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens." Boerne, 521 U.S. at 534. See also Kimel. 528 U.S. at 62; United States v. Morrison, 529 U.S. 598 (2000); College Savings Bank, 527 U.S. at 666. 12. 529 U.S. 598 (2000). 13. Pub. L. No. 103-322, tit. IV, 108 Stat. 1902 (1994) (codified in scattered sections of 42 U.S.C). The VAWA provides that all "persons within the United States shall have the right to be free from crimes of violence motivated by gender." 42 U.S.C § 13981(b) (1994). Congress recently reauthorized the VAWA, without the civil remedy provision struck down in Morrison, as the Violence Against Women Act of 2000 by a vote of 95-0 in the Senate and a vote of 371-1 in the House. See Family Violence Prevention Fund, VAWA Passes!, http://www.fvpLorg/newsflash/l0-11-2000vawa.html(Oct.11. 2000). 14. See Morrison, 529 U.S. at 612. See also infra discussion in Part II. 15. See SENATE COMM. ON THE JlJDICIARY, REPORT ON THE VIOLENCE AGAINST Wo­ MEN ACT OF 1993, S. REP. No. 103-138. at 41 (1993) (setting forth Senator Biden's state­ ment that a "partial estimate" reveals that violent crimes against women costs this country at least three billion dollars per year in lost wages, medical bills, and other incidental costs). 16. See Morrison, 529 U.S. at 612 ("Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity."). 1 1 j l I 2001] UNITED STATES v. MORRISON 739 tels 17 and a farmer's consumption of his own crops,18 because of the potential (as opposed to the empirically established) consequences of these activities on the national economy. VAWA's civil remedy provision was different, however; it was unconstitutional because it lacked the economic nexus shown in these other cases. 19 In this essay I set out to accomplish two things: First, I explore Morrison on its merits to consider what it reveals about the current majority's commit­ 17. See Katzenbach v. McClung, 379 U.S. 294 (1964) (upholding the constitutionality of Title II, Public Accommodations Provisions. of the Civil Rights Act of 1964 as valid legislation under the Commcrce Clause); see also Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (same). Katzenbach involved an as-applied challenge to Title II of the Civil Rights Act of 1964. Ollie's Barbecue challenged the operation of the Act as against its conduct of discriminating against African-American patrons on the grounds that the Commerce Clause could not reach purely local, intra-state activities. The Court rejected this argument reasoning that Congress had appropriately regulated racial discrimination by places of public accommodations because such conduct interfered with interstate com­ merce, regardless of the "insignificance" of Ollie's contribution. See id. at 300-01. The grant of power under the Commerce Clause "extends to those activities intrastate which so affect interstate commerce, or the exertiC'n of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted powcr to regulate interstate commerce." Id. at 302 (citing United States v. Wrightwood Dairy Co., 315 U.S. 110. 119 (1942». Respondent Ollie insisted that his restaurant was purely local and not "commerce." The Court, reaffirming Wickard v. Filburn, 317 U.S. 111 (1942). held that "even if appellee's activity be local and though it may not be regarded as commerce, it may stilL whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce." Id. (emphasis added). The Court also explained that the activitics that are beyond congressional regulations are those "which are completely within a ... State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of government.'· Id. (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) L 195 (1824)). Notwithstanding the opinion's broad language, the Court found significance in Ollie's serv­ ing food that has moved in interstate commerce. 18. See Wickard v. Filburn, 317 U.S. 111 (1942) (upholding the constitutionality of the Agricultural Adjustment Act, 7 U .S.c. §§ 1281-1393 (1994 & Supp. V 1999), against an as­ applied challengc). One of the principal purposes of the Act had been to increase the market price of wheat and to limit the volume of wheat moving in interstate and foreign commerce to avoid surpluses that could have an effect on price. The Act imposed penal­ ties on any farmer who produced or consumed wheat beyond a statutory quota. A farmer challenged the Act as applied to his own consumption of wheat on the grounds that Con­ gress could not reach his purely local conduct. The Court held that the regulation of a farmer's consumption of his own crops. when viewed in the aggregate, affected commerce in a way that pcrmitted Congress to regulate this activity through the Necessary and Proper Clause. See id. at 120. The Court stated that although Congress could not rely on the Commerce Clause to regulate activities that are just not part of commerce, it could regulate activities, which even if purely local and noncommercial, have an "actual effect" on interstate commerce. See id. And. the Court reaffirmed Chief Justice Marshall's adage in Gibbons v. Ogden. 22 U.S. (9 Wheat.) 1 (1824), that the "penetrating nature of this power ... [shows] that effective restraints on its exercise must proceed from political rather than from judicial processes." [d. (citing Gibbons. 22 U.S. (9 Wheat.) at 197). 19. United States v. Morrison. 529 U.S. 598, 611 (2000) ("[T]hose 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." ). 740 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 ment to "first principles" federalism. Second, I probe how this commitment can obfuscate the institutional obligation of the Court to be consistent with settled foundational understandings or to clarify significant departures from them. Two cautionary statements are in order. The first is that my goal in this essay is not to take on the nature of judicial federalism as a normative or prescriptive matter. I assume, arguendo, that judicial federalism is legitimate for purposes of this discussion. 20 My primary interest is to make a method­ ological point: in its Marb ury 21 role, the Court has a responsibility to develop its constitutional doctrine in a manner that neither creates incompatible frac­ tures in our constitutional understandings nor destabilizes settled expecta­ tions without giving a reasoned analysis justifying its change of position. 22 This modest legitimacy expectation can be achieved regardless of the norma­ tive coherence of the underlying substantive principles. The second caution is that my ambition here is also not to engage the merits of whether the Commerce Clause does or ought to permit Congress to regulate gender-motivated violence. Rather, it is to explore the Court's lack of forthrightness in changing constitutional course and to critique this lack of directness as a failure of the judicial function. That is, I engage in a concep­ tual clarification of the meaning of Morrison in light of the streamlined role of the judiciary I explain. Insofar as theoretical explanations or prescriptions may influence my account of the coherence of Morrison, I have no occasion here to explore those, but acknowledge that certain unstated assumptions may drive my analysis. First, I explain the current state of Commerce Clause doctrine and observe that the Court has failed to explain the basis for significant transfigurations to settled understandings. 23 lhus in Part I, I set forth the doctrinal arrange­ 20. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (setting forth the political process theory of federalism first articulated by Professor Herbert Wes­ ehler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954), and later expanded upon by Professor JESSE CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PRO­ CESS 175-84 (1980». For a different view, see John Yoo. The Judicial Safeguards of Federal­ ism, 70 S. CAL. L. REV. 1311, 1323 (1997). 21. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 22. See, e.g., THE FEDERALIST No. 78, 471 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (the Court should "be bound ... by strict rules and precedents." It is "judg­ ment" that gives the Court its legitimacy. ld. at 465). The critique here is not that the Court ought to be paralyzed from interpreting the Constitution consistently with evolving understandings, or conversely, from correcting previously shared views as inconsistent with our understandings. Rather, it is that when this change occurs-that is, when a corrective interpretation is adopted or a new formulation for constitutional understanding emerges­ it ought to be justified by reasoned arguments and it ought to be acknowledged for what it is: a change. I make no attempt here to address the propriety of judicial review or its attendant countermajoritarian difficulty concerns. 23. It is important to note what I mean by "settled" understandings, for I recognize the utter impossibility of having a settled expectation on any given vision of constitutional meaning. By "settled" I mean those doctrinal pronouncements that the Court has declared as authoritative and have come, through the passage of time and practice, to be accepted , \ t t r ] t ~: ]: " ·. I , ~: i i 2001] UNITED STATES v. MORRISON 741 [ 1 I~ j f I 'i , I J ments of the Commerce Clause prior to Morrison, and the changes brought forth by United States v. Lopez. 24 Because Lopez is an essential building block for the Court's normative conception of federalism, I review its hold­ ings and point out its discrepancies with prior caselaw. The incompatibilities resulting from juxtaposing Morrison and Lopez with prior doctrine illustrate the fundamental change in structural prerogatives these and other recent fed­ eralism cases reflect. In Part II I explore Morrison. I conclude that the Court has reworked Commerce Clause jurisprudence to a greater degree than most commenta­ tors had predicted in the wake of Lopez. Morrison renders certain congres­ sional enactments vulnerable and may ultimately undermine the Court's institutional legitimacy. It does so by confusing federalism doctrine and the­ ory in that it claims that it is consistent with commerce power principles, rather than acknowledging the ways in which the case departs from prece­ dent. One cannot look at Morrison and understand it by attempting to cate­ gorize it within an existing framework. Rather, the Court's rejection of the congressional exercise of power in this case reflects much deeper concerns than any doctrinal synthesis can accomplish. In Part III, I consider both the virtues and the limitations of the Court's new federalism. A robust judicial federalism doctrine can lead Congress, forewarned about the importance of state interests, to make more efficient policy choices. 25 At the same time, the persistent affirmation of the impor­ tance of structural values may provide for a greater check on the exercise of congressional power, which many think has already exceeded its proper bounds. But the doctrinal consequences of an underexplained, vigorous judicial federalism lead (among others) to concerns about the institutional expecta­ tions we have of the Court. The doctrinal incoherence that results from man­ aging difficult. abstract, political principles should impose upon the Court an obligation of reason-giving when it embarks upon significant changes. Though no single prescription can solve the difficulties springing from judi­ cial federalism, the requirement of candor and reason-giving is a first step. It is consistent with, indeed perhaps required by, rule-of-law values, and it does meanings of a given constitutional provision. For example, the manner, time, and place restriction to First Amendment protections-whether constitutionally mandated or not­ have come to be accepted as legitimate exercises of governmental power. If the Court decides to eviscerate the "time, manner, and place" limitation to the First Amendment, then it should explain why it never was mandated in the first place, or if it was, why the Constitution demands that we banish it from our understanding of First Amendment doctrine. 24. 514 U.S. 549 (1995) (striking down as unconstitutional the Gun Free School Zones Act (GFSZA) on the grounds that Congress had exceeded its Commerce Clause powers in regulating gun possession). 25. See Jesse Choper & John Yoo. The Scope of the Commerce Clause After Morri­ son? U.c. BERKELEY PUBLIC LAW AND LEGAL THEORY WORKING PAPER SERIES No. 34. at 3, available at http://papers.ssrn.com/soI3/papers.cfm?abstracUd=255300 (posted Jan. 11,2001) (explaining that one of the benefits of a decentralized system is an efficient allo­ cation of resources.). 742 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 not challenge-at least initially-the conflicting normative suppositions that go along with establishing the structural premise of state sovereignty as the default rule. I. A. "FIRST PRINCIPLES" FEDERALISM AND THE JUDICIAL ROLE A LIMITED VISION OF Introduction Whatever conception of judicial federalism commentators endorse, they re­ flect an understanding of the Court's institutional role that is widely, though not uniformly, held: that judicial decisions should be "the product of reason and not merely of will."26 That is, institutional legitimacy concerns impose upon judicial policymaking, particularly in an area as politically charged as federalism, an expectation of justification for the exercise of power. This is the limited role expectation for the judge to which I refer here. 27 What this thesis entails is a vision of the judicial function that, at a mini­ mum, imposes on our judges a responsibility of logical, principled decision­ making. I frame the legitimacy question as follows: is it consistent with our shared expectations of the judicial function for the Court to resolve a consti­ tutional question by departing from precedent without explaining why it is doing SO?28 This question entails the assumption that there is something nor­ matively unsound about a constitutional decision that departs from precedent in a significant way without an acknowledgment of such departure. One of the institutional expectations our legal culture endorses, and one which im­ bues a judicial opinion with legitimacy, is the requirement that precedents have some value, until overruled, and therefore should be followed. r under­ stand that this assumption requires, in turn, a certain acceptance of the role of stare decisis in constitutional adjudication, a proposition which is by no means a settled one or one on which commentators are in agreement. 29 My point here is that obedience to precedent-whatever its constitutional sta­ tus-serves as a check on the judicial power and as a legitimacy enhancing 26. Barry Friedman & Michael Dorf, Shared Constitutional Interpretation After Dick­ erson, available at Social Science Research Network Electronic Paper Collection. http:// papers.ssrn.com/soI3/papers.cfm?abstracUd=242232 (posted Sept. 22, 2(00) (explaining that the Court's failure to harmonize and explain Miranda v. Arizona, 384 U.S. 436 (1966) in Dickerson v. United States, 530 U.S. 428 (2000), represented a failure of its institutional responsibilities under Marbury. The authors explore the roles of the Court, Congress, and the States in matters of constitutional interpretation and find Dickerson consistent with a proper understanding of Miranda). 27. See, e.g., Edward Rubin & Malcolm Feeley, Creating Legal Doctrine, 69 S. CAL. L REV. 1989, 1998 (1996). 28. Of course one could disagree with the framing of the question, for it carries with it the burden of unstated assumptions. 29. See, e.g., Richard Fallon, Jr., Forward: Implementing the Constitution, 111 HARV. L. REV. 54, 112-17 (1997); Michael Stokes Paulsen. Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effects of Roe and Casey?, 109 YALE L. J. 1535 (2000). See also Evan Caminker, Why Must Inferior Courts Obey Superior Court Prece­ dents?, 46 STAN. L. REV. 817, 838 (1994). 2001] UNITED STATES v. MORRISON 743 interpretive tool. A departure from precedent should be accompanied by a justification for the exercise of power. 30 Constitutional policymaking at the Supreme Court level is powerfully self­ enhancing and uniquely self-justifying. Once a legal proposition is created ­ i.e., states possess a constitutional presumption of sovereignty-it provides a generative basis for additional policy decisions that can dramatically alter the landscape of constitutional understandings. The doctrine that results from this process ought to be a part of an orderly process by which the Court gives meaning to abstract propositions of social. cultural, or political import. These propositions become the law in an institutionally acceptable manner when they are translated into terms that are capable of being measured against existing legal criteria. 3l One of these accepted criteria is that judicial opin­ ions correspond to rule-of-law values. 32 Among the values we prefer are reli­ ance and predictability. As viewed by the current Supreme Court, what legitimacy in decision-making demands is "the predictability, continuity and coherence of the law, the visibility of the decision maker, and judges' accept­ ance of responsibility that law, rather than personal preference"33 forms the basis for adjudication. In addition to reliance and predictability, justification figures prominently within the rule-of-law canons. The Court is a powerful institution because its pronouncements on constitutional matters are final in almost every respect. This virtually unchecked power ought to impose a very high burden of expla­ nation. 34 Justification is especially required when the Court adjudges the constitutional competence of another branch to act within a sphere of power expressly delegated to it. principally when the underlying assumptions about the scope of that power are disputed. 3' Thus, even if first principles federal­ ism is a highly self-interested construction,3!> and we accept this as a legiti­ 30. Professors Rubin and Feeley argue, for example. that the legitimacy of judicial policymaking ought to conform to rule-of-Iaw values. Those values impose external con­ straints on decision-making. which "are general. clear, well-accepted. and congruent with the legal order." Rubin & Feeley, supra note 27. at 2026-27. This is consistent with Alex­ ander Bickel's description of the countermajoritarian difficulty. 31. See id. at 2029. 32. The Rule-of-Law concept in American constitutional discourse is subject to vary­ ing interpretations. which oftentimes comprise conflicting assumptions. See, e.g., Richard Fallon. " The Rille of Law" as a Concept ill Constitutional Discourse. 97 COLlJM. L REV. 1 (1997). See also ROBERT POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY. MANAGEMENT 30 (1995) (cited in TRIBE, supra note 2. at 82). 33. JUDICIAL CONFERENCE OF TIlE UNITED STATES, LONG RANGE PLAN FOR THE FEDERAL COURTS 8 (1995). 34. J. Harvie Wilkinson Ill. The Role of Reason in the The R!de of Law, 56 U. CHI. L REV. 779 (1989). Cf Charles Fried. Scholars and Judges: Reason and Power. 23 HARV. J. L & PUB. POL'y 807 (2000) (explaining that the goals of scholars in explaining the result of a decision are different from those of the Coun). 35. But see, Lawrence Lessig. Translating Federalism: United States v. Lopez, 1995 SUP. CT, REV. 125. 193 (stating that "to be faithful to the constitutional structure. the Court must be willing to be unfaithful to the constitutional tex!"). 36. See, Pierre Schlag, Clerks in the Maze. 91 MICH. L REV. 2053. 2054 (1993) (stating that we ought to recognize that much of what judges do. and which we call "law," "doc­ 744 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 mate manifestation of the judicial role, the Court ought to assume the responsibility of persuading us that it is the correct (or more enlightened) self-interested construction. One can object at this point by indicating that if one accepts the premise that federalism is simply an inapt doctrinal abstraction, then it is unfair to castigate the Court for failing to turn it into a suitable one. Either federalism is judicially manageable or it is not. But this normative question need not be answered to address the secondary methodological question. Assuming that judicial federalism is a legitimate part of our constitutional interpretive land­ scape, what principles-if any-ought to constrain the Court in this highly charged political and ideological area? (the latter being a premise with which little disagreement exists). I contend that justification, reliance, and predict­ ability are the minimal methodological requirements that the rule-of-law im­ poses. Institutional legitimacy presupposes authoritative interpretation. Authoritative interpretation, in turn, ought to include some modicum of con­ sistency with prior decisions or reliable explanations for departures from them. This essay allows for this conventional account of the Court's roleY I set out above the interpretive assumptions and framework-simplistically de­ fined as they are, with all its attendant contestable and polarized normativc premises -with which I examine the meaning of Morrison. I evaluate the case's conformance with this measure of judicial legitimacy and conclude that it falls short. The opinion departs significantly from precedent without ac­ knowledging, let alone justifying, this departure. Departures from precedent may well be justifiable in this as in other areas, but that case has yet to be made by this Court. Until it does, federalism doctrine will continue to evoke critical commentary on the ground that it violates well-worn principles of rule-of-law values, if not constitutional law. Morrison provides a framework within which to test some of these prem­ ises. The case contributes an opportunity to explore the optical illusion that the decision remains harmonious with the framework of settled understand­ ings about the institutional competence of Congress under the commerce power and the role of the states vis-a-vis that power. An understanding of trine," or "principles," "is but a romanticized and inflated shadow image of all that law is and all that law does." What judges do, he states, is develop "self-interested constructions" of legal issues). 37. I make no attempt here to explore or to develop a theory of constitutional inter­ pretation or to engage in an exegesis about political or legal theory. Thcsc are elaborate themes that require a separate and meticulous dissection wcll beyond what I want to achieve here. Although the absence of an organizing theoretical model need not be para­ lyzing to a doctrinal exploration of a given Supreme Court decision, it is helpful for pur­ poses of my discussion to set out the prism through which I examine Morrison-the idea that the Supreme Court has the institutional responsibility to be consistent in its founda­ tional understandings or to justify with a principled analysis the reasons for its departure from those foundations. See. e.g., JOSEPH GOLDSTEIN, THE INTELLIGIBLE CONSTITUTION: TIlE SUPREME COURT'S OBLIGATION TO MAINTAIN TIlE CONSTITUTION AS SOMETHING WE THE PEOPLE CAN UNDERSTAND (1992); Fallon, supra note 29, at 150; CASS SUNSTEIN, THE PARTIAL CONSTITUTION 20, 24 (1993). I 2001] UNITED STATES v. MORRISON 745 Morrison requires a brief, if overly simplified, excursion through the Com­ merce Clause doctrinal landscape. B. The Doctrinal Commerce Clause Congress's most important power is the power to legislate; within this power, the Commerce Clause is its most significant source. Judicial interpre­ tation of the Commerce power has varied with the political and social imper­ atives of a given historical period. There are Justice Marshall's initial defining conceptions of the Commerce Clause, the pre-1937 Commerce Clause, the New Deal Commerce Clause, and the post-Lopez rendition. Here, I briefly (indeed, very briefly) describe the pre-New Deal understand­ ing, glance at the post-1937 interpretation, and explore in a little more detail the post-Lopez categorizations. The pre-1937 Commerce Clause manifested an express judicial concern for the prerogatives of the States. When one thinks about federalism, it is not readily apparent that an affirmative, explicit grant of power to the federal government would, or should, be limited by the "reserved" power of the States under the Tenth Amendment. 38 The scope of Congress's authority to regulate on the basis of an enumerated power arguably should be defined by the text: "Congress shall have the Power ... To regulate Commerce ... among the several States."39 But an interpretive difficulty arises from such an open-textured norm when the postulate of dual federalism informs the breadth of the congressional prerogative. Thus, the authority to prescribe rules under the Commerce Clause has been limited structurally, as well as textually,40 and by looking at the reserved police powers of the states under the Tenth Amendment. 41 Prior to the New Deal, federalism concerns figured prominently in commerce power interpretations. The Court struck down federal statutes on the grounds that 42 refining sugar was not "commerce;"43 38. See. e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 353 (1819) (explaining that although the Tenth Amendment confirmed that ours is a government of limited and enumerated powers, an expressly delegated power. through the Necessary and Proper Clause. could accomplish any end not forbidden by the Constitution, like the establishment of a national bank). 39. U.S. CONST. Art. I. ~ 8(3). 40. Richard Levy, Federalism. The Next Generation, 33 Loy. L.A. L. REV. 1629, 1631 (2000). Congress's first attempt to regulate the national economy came in the form of the Interstate Commerce Act of 1887, and the Sherman Antitrust Act of 1890. both of which were enacted on the basis of the commerce power. 41. Most of the early Commerce Clause cases dealt with curbing state power. See. e.g.. Kidd v. Pearson. 128 U.S. 1. 20-23 (1888) (holding that regulations of alcohol manu­ facturing by the states did not interfere with the commerce power): The Daniel BalL 77 U.S. 557. 665 (1870) (holding constitutional Congress's power to license ships). 42. Levy. Sllpra note 40, at 1632-33. Bllt see Larry Kramer, PUlling the Politics Back Into the Political Safegllards of Federalism. 100 COLUM. L. REV. 215, 233 (2000) (stating that "the extent of effective judicial intervention prior to the New Deal was far more mod­ est than most of us were taught."). 43. United States v. E.C. Knight Co.. 156 U.S. 1. 17-18 (1895). This case concluded that the Sherman Antitrust Act could not reach the conduct of sugar refining monopolies because "manufacturing" was not "commerce." I i r ( 746 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 regulation of child labor was not "commerce" but a matter of local concern;44 regulation of labor generally was a matter of local concem. 45 These decisions reflected a concern that the states reserved considerable autonomy from federal regulation, even in the commercial sphere, as a mat­ ter of constitutional structure and balance. In translating this concern into doctrine, however, the Court often linked its account of limited congressional authority to a robust theory of individual autonomy from all legislative power-federal or state-as part of its substantive due process rights and freedom of contract. These different approaches lead inevitably to different outcomes. In the pre-New Deal era, the Court deployed the first approach to overturn numerous congressional measures, on the ground that no "commer­ cial" activity was being regulated. Yet, it also protected state power and local control in economic cases. The economic crisis that led to New Deal legislation required a differ­ ent understanding of the role of Congress and its ability to address national problems. Structural presumptions changed and the Court re­ versed course in its Commerce Clause approach in 1937.46 'The Court over­ ruled its prior restrictive interpretations and its broader accounts of individual economic rights, paving the way for economic and social legis­ lation at both the federal and state 1cvels. 47 The prevailing paradigm changed from a state sovereignty presumption to one where congressional power under the Commerce Clause was plenary.4~ Indeed, with one excepIt is vital that the independence of the commercial power and of the police power, and the delimitation between them, however sometimes perplexing, should always be recognized and observed, for while the one furnishes the strongest bond of union, the other is essential to the preservation of the auton­ omy of the States as required by our dual form of government .... Id. at 13. 44. Hammer v. Dagenhart, 247 U.S. 251, 271-72 (1918) (invalidating the Child Labor Act). 45. Carter v. Carter Coal Co., 298 U.S. 238,315-17 (1936) (striking down sections of the Bituminous Coal Conservation Act on the grounds that Congress's regulation of labor exceeded the Commerce Clause; the regulation of labor was a matter of "local" concern); see also The Employer's Liability Cases, 207 U.S. 463, 504 (1908) (striking down the Em­ ployer's Liability Act as an unconstitutional exercise of the commerce power). 46. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,41 (1937 (holding that the National Labor Relations Act was a constitutional exercise of the commerce power); United States v. Darby. 312 U.S. 100, 116-17 (1941); Wickard v. Filburn, 317 U.S. 111, 128 (1942). "[I]t was the Great Depression, the New Deal, and the intellectual movements to which both contributed, that finally severed ... [the] peculiar linkage of institutional boundaries and personal rights." TRIIlE, supra note 2, at 13. 47. See, e.g., Stephen R. McAllister, Is There a Judicially Enforceable Limit to Con­ gressional Power Under the Commerce Clause?, 44 U. KAN. L. REV. 217, 224 (1996) (Con­ gress relied on the Commerce Clause to address economic and social problems). 48. See, Hodel v. Virginia Surface & Mining Reclamation Ass'n, 452 U.S. 264, 276 (1981) (stating that Commerce Clause was a "grant of plenary authority," to Congress, a recognition that limits the judicial role to a "relatively narrow" set of circumstances, such that the Court will "defer to a congressional finding that a regulated activity affects inter­ state commerce. if there is any rational basis for such a finding."); see also Deborah Jones Merritt, Commerce!, 94 MICH. L. REV. 674, 675 (1995) (stating that law students graduat­ 2001] UNITED STATES v. MORRISON 747 tion,49 the "power of Congress [under the Commerce Clause was considered] broad and sweeping; where it ke[pt] within its sphere and violate[d] no ex­ press constitutional limitation" the Court would not interfere with the legisla­ tive choice. 50 There was little Congress could not regulateY The only limiting principle was one of judgment: if Congress's reasons for regulating an activity were rational, then the Court would defer to the legislative choice.52 Armed with this interpretive presumption, the Court upheld as ra­ tional Congress's conclusion that racial discrimination at any establishment­ no matter how small or how local-affected commerce because it prevented people from traveling to those states in which racial discrimination oc­ curred. 53 The introduction of this aggregate effects test greatly increased congressional power and enabled Congress to enact a wide range of statutes regulating civil rights,54 criminallaw,55 and the environment,56 among others. But the Court of those cases had a different vision of government and its corresponding limits than the current Court does. Because constitutional in­ ing in 1980 truly believed that Congress could regulate anything. regardless of how local the activity was. under the Commerce Clause). 49. See, e.g.. National League of Cities v. Usery. 426 U.S. 833 (1976). where the Court struck down the portion of the Fair Labor Standards Act (FLSA) that applied to the states as employers. The Court held that regulation of the states qua states was impermissible under the Tenth Amendment. even if Congress otherwise had the power under the Com­ merce Clause to regulate identical private conduct. Congress simply could not regulate traditional government functions. But National League of Cities was overruled in Garcia v. San Antonio Metropolitan Transit Authority. 469 U.S. 528 (1985), in which case the Court held that there were no Tenth Amendment limitations to Congress's power under the Commerce Clause and thus the FLSA could constitutionally be applied to the states. For a discussion of this line of cases, see Merica-Stephens. supra note 11. 50. Katzenbach v. McClung. 379 U.S. 294. 305 (1964). 51. This was the case even if Congress sought to regulate what was considered a moral wrong. Sec, e.g.. Champion v. Ames. 188 U.S. 321 (1903) (prohibiting the sale of lottery tickets that moved across state lines): Heart of Atlanta Motel. Inc. v. United States, 379 U.S. 241 (1964) (upholding Title 11. Public Accommodation Provision of the 1964 Civil Rights Act as a valid exercise of congressional power): Katzenbach v. McClung, 379 U.S. 294 (1964) (same): Perez v. United States. 402 U.S. 146 (1971) (prohibiting loan sharking). 52. See. e.g.. Hodel. 452 U.S. at 276 (holding that the Court would "defer to a congres­ sional finding that a regulated activity affects interstate commerce, if there is any rational basis for such a finding.") 53. See Heart of Atlal1ta Motel. 379 U.S. at 241: Katzenbach. 379 U.S. at 294. 54. See, e.g.. Heart of Atlanta Motel. 379 U.S. at 261. Title II of the Civil Rights Act of 1964 provides. in relevant part: "All persons shall be entitled to the full and equal enjoy­ ment of the goods. services. facilities. privileges. advantages. and accommodations of any place of public accommodation ... without discrimination or segregation on the ground of race, color, religion. or national origin." Heart of Atlanta Motel, 379 U.S. at 247. 55. See, e.g.. Perez. 402 U.S. at 156-57 (upholding Title II of the Consumer Credit Protection Act. which prohibited organized crime. on the grounds that Joan sharking af­ fected the national economy). 56. In Hodel v. Virginia Surface & Mining Reclamation Association. 452 U.S. 264. 304­ 05 (1981). the Supreme Court upheld the constitutionality of the Surface Mining Control and Reclamation Act on the grounds that the "local" activity of surface mining creates environmental hazards that affect more than one state through water and air pollution and thus Congress can regulate the activity under the Commerce Clause. See id. at 283. 748 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 terpretation ebbs and flows with the Court's membership,S? judicial defer­ ence to congressional power lost its steam in 1995 when the Court's conservative majority gained momentum. 58 Post-Lopez interpretations of the Commerce Clause reflect normative concerns that are at once more so­ phisticated and unenlightened than those held by the pre-1937 Court. They are more sophisticated because of the richly textured history of Commerce Clause interpretation, the complexities of modern day. and a matured under­ standing of the judicial role. But they are more unenlightened because the Rehnquist Court measures the problems and concerns of the year 2000 against what the Framers would have thought to be unimaginable for the federal government to regulate in 1791. Since Lopez, as was true prior to 1937, the Tenth Amendment and state sovereignty shapes the Commerce Clause inquiry, but it does so with a more aggressive conception of the judi­ cial role. 59 One of the unimaginable consequences of expansive congressional power the Rehnquist Court feared manifested itself when Congress sought to regu­ late gun possession in a school zone, a responsibility traditionally assumed by 57. See, e.g., John Dinan, The Rehnquist Court's Federalism Decisions in Perspective, 15 J. L. & POL. 127 passim (1999) (explaining the federalism decisions in historical context and concluding that the Rehnquist Court's decisions in this area can be best understood "as mounting a series of responses to propositions that first assumed prominence during the Warren and Burger Courts." Id. at 127.). 58. 'The appointment of Justice Thomas to fill the vacancy left by Justice Thurgood Marshall gave the conservative majority the fifth vote. It is important to note that most First Principles Federalism decisions have been 5-4 decisions. All dissents have been pas­ sionate in their belief that the majority is misguided in conceptualizing dual federalism along bright-line rules. The dissenters have equated the Court's interpretive efforts with twentieth century Lochnerism. referring to the discredited Lochner v. United States, 198 U.S. 45 (1905). and its theory of economic substantive due process to strike down other­ wise constitutional congressional action. One change in the Court's membership in the coming four years could represent a significant change for this line of cases. Commentators have been equally critical. See, e.g" Linda Greenhouse, States Are Given New Legal Shield By Supreme Court, N.Y. TIMES, June 24, 1999, at AI: Anthony Lewis, Editorial, The Su­ preme Power, N.Y. TIMES, June 29, 1999, at A19 (branding the majority "a band of radical judicial activists" set out to redraft the Constitution without historical or textual support). But see, Kathleen Sullivan, Federal Power, Undimmed, N.Y. TIMES, June 27, 1999, at 4-17; David Ignatious, Back to the States, WASH. POST, June 27. 1999, at B7 (agreeing with the results of the decisions). For further commentary, see Symposia. cited supra note 11. 59. See generally supra note 11 and cases therein cited. See, e.g., New York v. United States, 505 U.S. 144. 157 (1992) (striking down as unconstitutional the Take-Title provi­ sions of the Low-Level Radioactive Nuclear Waste Policy Amendment Act of 1990 on the grounds that it violated the Tenth Amendment and the structural principle of dual federal­ ism for Congress to "commandeer" the state legislature to implement a federal regulatory program); Printz v. United States, 521 U.S. 898 (1997) (striking down portions of the Brady Handgun Violence Prevention Act on the grounds that it violated the Tenth Amendment and principles of dual federalism to direct local law enforcement officers to implement and administer a federal regulatory program). The anti-commandeering rule provides that while Congress may preempt state law and may enact incentives for states to adopt federal regulations, it may not force the States to enact federal regulations directly, nor may it direct state officials to carry out a federal regulatory program. 2001] UNITED STATES v. MORRISON 749 the states. 60 In Lopez v. United States,61 a five-justice majority, for the first time in sixty years, struck down a congressional statute on the grounds that Congress had exceeded its commerce power. The Court held unconstitu­ tional the Gun Free School Zones Act (GFSZA),62 which made it a crime to possess a handgun in a school zone, as "'exceed[ing] the authority of Con­ gress '[t]o regulate Commerce ... among the several states.'''63 C. United States v. Lopez and the Change in the Doctrinal Commerce Clause. Texas Police arrested Alfonso Lopez for possessing a firearm within a school zone. a violation of Texas law. 64 After the state dropped charges against him, a federal grand jury indicted Lopez for violating the GFSZA.65 Lopez was convicted and he challenged his conviction on the grounds that Congress, in enacting the GFSZA, had exceeded its Commerce Clause pow­ ers. The Supreme Court agreed, vacated his conviction, and struck down the Act as unconstitutional. Gun possession is not commerce. There has been voluminous commentary on the meaning and implications of Lopez. 66 Although many scholars first assumed that Lopez was an aberra­ tion unlikely to change the federalism landscape,67 others viewed Lopez as a more significant transformation in federal-state canons. 68 Morrison confirms I ; ! I \ I t 60. See New York v. United States, 505 U.S. at 157 (the Framers would have thought unimaginable the congressional power of the 1990's because "the Framers would not have believed that the Federal Government, rather than the States, would assume such respons ibil ities"). 61. 514 U.S. 549 (1995). 62. Pub. L No. 101-647, § J702(b)(I). 104 Stat. 4844 (1990) (codified at 18 U.S.c. § 922(q) (1994 & Supp. 1999». Some commentators have reflected that the GFSZA was just a "feel-good" legislation that ought never to have been enacted. Jeffrey Rosen noted that there was "no uniquely federal interest involved [in the statute]-except for the purely symbolic interest of congressional Democrats and Republicans in appearing simultane­ ously tough on crime and tenderhearted on children." Jeffrey Rosen. Editorial, Fed Up, NEW REPUBLIC, May 22. 1995. at 13. 63. Lopez. 514 U.S. at 551 (quoting U.S. CONST. ART. 1. § 8. cl. 3). 64. Sec id. 65. See id. 66. For extensive commentary on Lopez and its aftermath, see, e.g., Symposium, The New Federalism After United States v. Lopez. 46 CASE W. RES. L REV. 633 (1996); Sym­ posium, Refleetiolls 011 United States v. Lopez, 94 MICH. L. REV. 533 (1995). 67. See, e.g.. Robert Nagel, The Future of Federalism, 46 CASE W. RES. L REV. 643, 660 (1996) (stating that Lopez is an isolated instance of the Court warning Congress not to be too nonchalant in exercising its commerce power); Suzanna Sherry, The Barking Dog, 46 C4.SE W. RES. L RE·V. 877. 882 (1996) (arguing that Lopez is a one-time posturing meant to affirm the Court's repeated warnings about overextended congressional power, but cannot and will not be practically followed); Deborah Jones Merrit. The Fuzzy Logic of Federalism. 46 CASE W. RES. L REV. 685. 692 (1996) (positing that Lopez "will have very little practical effect. ..... ); Philip Frickey. The Fool all the Hill: Congressional Find­ ings, ConstitUlional Adjudication and United States v. Lopez. 46 CASE W. RES. L REV. 695. 729 (1996) (arguing that Lopez is but an invitation for an open discussion between the judiciary and Congress on the values of federalism). 68. See, e.g.. Linda Greenhouse. Justices Curb Federal Power 10 Subject States to Law­ suits, N.Y. TIMES, Mar 28.1996. at Al ( It is now "evident ... that the Lopez decision was 750 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 the latter scholars' view. The scarcely observable structural concerns the Court had in Lopez provided the momentum for the emboldened judicial federalism ushered in by Morrison. The Lopez majority was particularly troubled with congressional expan­ sion of power when it invaded areas traditionally reserved to the states for regulation. In Lopez, these two areas were education and criminal law. Fed­ eral incursion into either or both on the basis of an aggregate effects thesis concerned the Court because it was inconsistent with dual federalism. The majority was thus unpersuaded by the government's evidence of the eco­ nomic effects of gun possession in school zones. The state sovereignty pre­ sumption-which is necessarily entailed in the structural thesis- suggested that the government's inferential arguments were insufficient to justify an exercise of power. Therefore, the Court rejected the consequences that a "pil[ing of] inference upon inference," would cause because it "would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. "69 The majority explained that a Constitution of enumerated powers must presume something not enu­ merated.7° Thus if the Court were to permit the GFSZA, it would also em­ power Congress to "mandate a federal curriculum for local elementary and secondary schools because what is taught in local schools has a significant 'effect on classroom learning,' and that, in turn, has a substantial effect on interstate commerce.'·?l This result was simply not constitutionally permitted as a structural matter. In a concurring opinion, Justice Kennedy expressed concern with expan­ sions of federal power because they are inconsistent with New York v. United States. 72 As he stated it, "[w]ere 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 sphere of federal and state authority would blur and political accountability would become illusory."?3 The GFSZA, thus, was not an acceptable reading a signal that the current majority is in the process of revisiting some long-settled assump­ tions about the structure of the Federal Government and the constitutional allocation of authority between Washington and the states.") See also Steven Calabresi, "A Govemmefll of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752, 752 (1995) (applaUding the result in Lopez and arguing that it represented a significant change in the direction of federalism as "an extraordinary even!."). 69. Lopez, 514 U.S. at 567. (Rejecting the government's inferential argument because: 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. Id. at 564.) 70. See id. at 567. 71. Id. at 565. 72. S05 U.S. 144 (1992) (holding that Congress could not, consistent with the Tenth Amendment, "commandeer" the legislatures of the states). 73. Lopez, 514 U.S. at 577 (Kennedy, J., concurring). 2001] UNITED STATES v. MORRISON 751 I t I I t , j k of the Commerce Clause when understood against the backdrop of a govern­ ment of limited and enumerated powers,?4 Two of the fatal flaws with the GFSZA, according to the Court, were that (1) it lacked a "jurisdictional" element, and (2) there were no congressional findings demonstrating the effects on interstate commerce of gun possession in school zones,?5 Moreover, although commerce clause jurisprudence prior to Lopez established that Congress need not make formal findings in show­ ing the effect of an activity on interstate commerce, the Court in Lopez sug­ gested that such findings may help the Court understand and defer to the "legislative judgment that the activity in question substantial1y affect[s] inter­ state commerce, even though no such substantial effect was visible to the naked eye. "76 Both of these conclusions have troublesome implications. The statutory requirement of a "jurisdictional" element neither addresses nor accommodates the majority's concerns. It is unclear why the existence of a "jurisdictional" clause in a federal statute should make a difference in as­ sessing whether Congressional power has intruded into the constitutional prerogatives of the states. 77 That is, why should a jurisdictional hook be suffi­ cient to authorize a statute that interferes no less with state priorities when the gun is found to have moved in, or was manufactured with components that moved in, interstate commerce, than if it had not? For example, Con­ gress reenacted the GFSZA post-Lopez, and added only twelve words: "It shall be unlawful for any individual knowingly to possess a firearm ... at a place that the individual knows, or has reasonable cause to believe, is a school zone," so long as the firearm is one "that has moved in or that other­ wise affects interstate or foreign commerce."7c Yet, this revision docs very little to curtail congressional power in an "unimaginable" domain, and it does not diminish any alleged impact on areas of "traditional state concern." The Court's primary objective was to focus on the nature of the underlying activ­ ity-paying particular attention to whether ... that activity could itself be described as part of an economic enterprise," rather than focusing on the quantitative effect of the regulated activity.7~ "In other words, it is not 'pil[ing] inference upon inference' per se that is constitutionally problematic, but rather the accumulation of inferences that are qualitatively of a sort that would justify a great deal of other far-reaching regulation as we11."80 74. See id. at 565-66 (citing Gibbons v. Ogden. 22 U.S. (9 Wheat.) I, 195 (1824» ("The enumeration presupposes something not enumerated. "). 75. See id. at 561-62 and 562-66 respectively. 76. Id. at 563. 77. See Peter Shane. Federalism's "Old Deal": What's Right and Wrong with Con­ servative Judicial ACTivism, 45 VILL. L. REV. 201, 215-22 (2000). 78. 18 U.S.c. § 922(q)(2)(A) (1994 & Supp. 1(99). 79. TRIBE. supra note 2, at 819. Congress had marshaled no evidence substantiating the legislative judgment that gun possession in a school zone affected interstate commerce. However. prior to 1995 the Court explicitly had held that Congress need not document the legislative record to justify the legislative policy choice. See supra notes 51-52 and accom­ panying text. 80. Shane. supra note 77, at 215. As the Fifth Circuit stated, "one might well wonder how it could rationally be concluded that mere possession of a firearm in any meaningful f i ! r I ~. I 752 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 The Court's second concern in Lopez-the absence of congressional find­ ings 81 -is questionable as a matter of constitutional law and is underex­ plained in a manner that creates surprising doctrinal inconsistencies. There are two strands to this problem: the consistency predicament and the inter­ pretive quandary. I address the first in this section and explain the latter in the context of the discussion about Morrison. The consistency predicament stems from the Lopez majority's insistence that its holding was consistent with Wickard and other cases where it had been settled that congressional findings were unnecessary. Although Chief Justice Rehnquist expressed concern that Wickard was "perhaps the most far reaching example of Commerce Clause authority over intrastate activity,"82 Lopez's holding expressed a clear reaffirmation of the principles there laid down. In Wickard, the Court explained that a farmer's consumption of his own wheat, and Congress's concomitant power to regulate that consumption, "involved economic activity in a way that the possession of a gun in a school zone does not."83 The Agricultural Adjustment Act involved in Wickard at least showed that "the purposes [and] the design of the statute [had] an evi­ dent commercial nexus."84 The GFSZA had none. But the AJA also had no congressional findings on farmer Filburn's conduct. There is nothing remarkable about concluding that there is a difference between the Agricultural Adjustment Act and the GFSZA. Congressional concerns about the destabilizing effects on the economy stemming from un­ regulated wheat prices were readily apparent. 85 What is puzzling, however, is the conclusion that the "as-applied" challenge in Wickard 8 f> was different from the government's contention in Lopez: the aggregate effects of gun pos­ session in a school zone have an impact on interstate commerce. When farmer Filburn challenged the Agricultural Adjustment Act because, as ap­ plied to him, it "extend[ed] federal regulation to production not intended in any part for commerce but wholly for consumption on the farm,"87 The Court responded: way concerns interstate commerce simply because the firearm had, perhaps decades previ­ ously before the charged possessor was even born, fortuitously traveled in interstate com­ merce." United States v. Rawls, 85 F.3d 240, 243 (5th Or. 1996) (Garwood, J.. concurring) (rejecting a constitutional challenge to the Felon Act). 81. The government readily acknowledged that Congress had produced no legislative history showing that possession of a gun within a school zone had an effect on interstate commerce. Perhaps this was the primary flaw of GFSZA. But. as the government also pointed out, prior to Lopez it was thought unnecessary for Congress to develop a legisla­ tive record "proving" an activity's impact on interstate commerce. See United States v. Lopez, 514 U.S. 549, 562 (1995). 82. Lopez, 514 U.S. at 560. 83. Id. 84. !d. (Kennedy, J., concurring in the judgment). 85. See Wickard v. Filburn. 317 U.S. 111. 115 (1942) ("The general scheme of the Agricultural Adjustment Act of 1938 as related to wheat is to control the volume moving in interstate and foreign commerce in order to avoid surpluses and shortages and the con­ sequent abnormally low or high wheat prices and obstructions to commerce." [d.) 86. See supra note 81 and accompanying text. 87. Wickard, 317 U.S. at 118. 2001] UNITED STATES v. MORRISON 753 Whether the subject of the regulation in question was "production," "consumption," or "marketing" is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it. ... But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as "direct" or "indirect. "88 The Lopez Court's reaffirmation of Wickard creates doctrinal confusion because it fails to acknowledge how Lopez significantly narrows the magni­ tude of the principle there established. This does not suggest that narrowing a principle of law is illegitimate as a matter of interpretation. But rule-of-law values do counsel for an accounting, rather than an affirmative denial, when a departure from an important precedent is significant. Consider how the aggregation principle has been interpreted and understood in post Wickard cases. Consider, too, how important Wickard's interpretive presumption has been for social legislation. In Heart of Atlanta Motel and Katzenbach v. Mc­ Clllng, for example, the Court read Wickard to permit the regulation of racial discrimination at local restaurants and hotels because these activities, in the aggregate, had a substantial impact on interstate commerce. These cases did not turn on whether the activity was commercial or economic; rather, the impact they had on commerce was the driving force. What Lopez did was to turn the presumption of constitutionality for congressional actions onto its head: it created a supposition of unconstitutionality of sorts when the Court views the regulated realm as reserved to the states. The judicial judgment takes precedence over the legislative judgment in a post Lopez world. And, whereas prior to 1995 the legislative motive was of no apparent consequence, congressional motives are now an important aspect of the interpretive pro­ cess. This is a significant deviation from established principles. The extent of the change may be uncertain for some time as challenged environmental and social legislation work their way to the Court's docket. 89 88. Id. at 124-25 (emphasis added. citations omitted). 89. See, e.g., Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 121 S. Ct. 675 (2001) (holding that the jurisdiction of the Corps of Engineers under the Clean Water Act did not extend to isolated wetlands simply because protected migratory birds stop there); cf. United States v. Wilson. 133 F.3d 251, 254 (4th Cir. 1997) (holding that the Corps had excceded its congressional authorization when promulgating regulations under the Clean Water Act because it cannot regulate isolated wetlands); see a/so Board of Trustees of Univ. of Ala. v. Garrctt. 121 S. Ct. 955 (2001) (holding that Congress exceeded its powers under Section Five of the Fourteenth Amendmcnt in abrogating the sovereign immunity of the statcs and subjecting them to suit under the Americans with Disabilities Act). Although Garrell does not involve a Commerce Clause challenge. it does present the Court with a federalism-clarification question: does Congress have the power to abrogate the sovereign immunity of the states and subject thcm to private causes of action under the ADA? Lopez and the Court's other federalism cases must be understood and synthesized as representing a common goal: returning power to the states and restricting federal power. I I t I I f t I f ~ I f 754 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 But a transformation it is. The Court has changed direction in its Com­ merce Clause interpretation, and it has obscured the nature of this change by suggesting that these newer cases conform to (previously) established law. They do not. The result has been substantial confusion as lower courts disa­ gree about what is and what is not constitutionaPO Post-Lopez. Congress can regulate the use of the channels of interstate commerce,91 and may also regu­ late and protect the instrumentalities of, persons. or things in interstate com­ merce, even though the threat may derive from local activities. 92 It can even regulate an activity that in the aggregate substantially affects interstate com­ merce. 9-" But as to this last category, there are substantial doubts about whether Congress can regulate non-economic. non-commercial activity.94 90. See. e.g., Anisimov v. Lake, 982 F. Supp. 53!. 535 (N.D. III. 1997) (mem.) (uphold­ ing the constitutionality of VAWA's civil remedy provision. but noting that courts confront much "uncertainty concerning how the Supreme Court will approach these issues when it considers future challenges to congressional authority under the Commerce Clause." Id.). For example, out of seven federal courts to address the validity of VAWA prior to Morri­ son, five upheld the statute and two struck it down, all of them applying Lopez. See Doe v. Doe, 929 F. Supp. 608, 617 (D. Conn. 1996) (upholding constitutionality of VAWA's civil remedy provision under the Commerce Clause); Doe v. Hartz. 970 F. Supp. 1375, 1423 (N. D. Iowa 1997) (same), rev'd on other grounds, 134 F.3d 1339, 1344 (8th Cir. 1998); Seaton v. Seaton, 971 F. Supp. 1188, 1195 (E.D. Tenn. 1997) (same); but see, Brzonkala v. Virginia Polytechnic & State Univ., 169 F.3d 820, 826 (4th Cir. 1999), aird. United States v. Morri­ son, 529 U.S. 598, 610 (2000) (striking down the civil remedy provision). 91. See Lopez, 514 U.S. at 558. 92. See id. 93. See id. at 559. 94. For example, the majority of facial attacks on statutes have been upheld in the lower courts, primarily on jurisdictional grounds. See United States v. Crump, 120 F.3d 462,465 (4th Cir. 1997) (rejecting a facial challenge to the Felon Act, 18 U.S.c. § 922(g)(l) (1994 & Supp. V 1999), which makes it a crime for any felon to ship, transport, receive, or possess any firearm "in or affecting commerce." The court distinguished Lopez because the Felon Act possesses a jurisdictional clement); United States v. Murphy. 107 F.3d 1199, 1212 (6th Cir. 1997) (same); United States v. Pappadopoulos. 64 F.3d 522, 522 (9th Cir. 1995) (rejecting a facial attack to the Federal Arson Statute, 18 U.S.c. § 844(i) (Supp. V 1999), which makes it a crime to use explosives or fire to cause damage to property "used in" or "affecting" interstate or foreign commerce, but heightening the jurisdictional nexus for an as-applied challenge. The court held that after Lopez, the government must show a "substantial" connection between the damaged property and interstate commerce). Other statutes have been upheld on the grounds that the legislative record adequately supported the Lopez substantial effects test. See. e.g., United States v. Leshuk, 65 F.3d 1105, 1112 (4th Cir. 1995) (upholding section 401(a)(I) of the Comprehensive Drug Abuse Prevention and Control Act on the grounds that Congress had made "detailed findings" on the effect of drug trafficking on interstate commerce); Hoffman v. Hunt, 126 F.3d 575, 586 (4th Cir. 1997) (upholding the Freedom of Access to Clinics Act on the grounds that congressional findings supported a substantial connection to interstate commerce). 2001) UNITED STATES v. MORRISON 755 From an interpretive standpoint, judges can now scan congressional mea­ sures with a skeptical95 -rather than an acquiescent-eye. 96 If one considers this unacknowledged (and unexplained) burden-shifting as creating a rule-of­ law difficulty, Morrison deepened this concern. 97 One of the interpretive quandaries resulting from Lopez is the problem of determining what the Court meant when it held its ruling to be consistent with established prece­ dents. 98 Although the lack of congressional findings figured prominently as a reason for striking down the GFSZA, Morrison made explicit that the Court's concerns were unrelated to the existence of legislative evidence or the lack thereof. In Morrison, though confronted with a voluminous legisla­ tive history that substantiated the allcged effects of gender-motivated vio­ lence on interstate commerce, the Court rejectcd this evidence and struck down VAWA as an unconstitutional exercise of congressional power. 99 II. UNITED STATES V. MORRtSON I I I · Christy Brzonkala alleged she was raped by co-students Antonio Morrison and James Crawford in hcr dorm at Virginia Polytechnic Institute in the fall of 1994. 100 Soon after the sexual assault, Brzonkala withdrew from Virginia Tech because of depression. 10l A few months later, she filed a complaint against the two football players under Virginia Tcch's Sexual Assault Pol95. See Lopez, 514 U.S. at 557 n.2 (citing Justice Rehnquist's concurring opinion in Hodel v. Virginia Surface & Mining Reclamation Association, 452 U.S. 264, 311 (1981); Justice Black's concurring opinion in Heart of Atlatl/a Motel v. United States, 379 U.S. 241. 273 (1964)). lnis foot noll:. obliquely referring to concurring opinions, later made it into thc main text of Morrison, on which statement the Court relied to strike down the civil remedy provision notwithstanding the extensive legislative record: As we stated in Lopez. "[Sjimply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so." 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." Morrison, 529 U.S. at 613 (citations omitted). 96. See, e.g, Lopez, 514 U.S. at 604. 613 (Souter. J., dissenting. pointing out that the practice of "deferring to rationally-based legislative judgments 'is a paradigm of judicial restraint: and the institutional competence assigned to Congress by the Constitution should not be usurped by the Court. "). 97. See, e.g., id. at 630 (Breyer. J., dissenting) (pointing out that the "third legal prob­ lem created by the Court's holding is that it threatens legal uncertainty in an area of the law that. until this case. seemed reasonably well settled. Congress has enacted ... (more than 100 sections of the United States Code) ... that use the words 'affecting commerce' to define their scope. "). See also supra note 95 and accompanying text regarding the signifi­ cance of footnote 2 of Lopez, and infra notes 129-31 and accompanying text regarding the state sovereignty presumption. 98. See, e.g., Terry v. Reno, 101 F.3d 1412, 1416 (D.C. Cir. 1996) (holding that even after Lopez, courts "must defer to a congressional finding that a regulated activity affects interstate commerce, 'if there is any rational basis for such a finding' "). 99. See infra notes 109-12 and accompanying text. 100. See Morrison, 529 U.S. at 601. 101. See id. at 603. 756 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 I icy.I02 The University's Judicial Committee found Morrison guilty of sexual assault, but dismissed the charges against Crawford for insufficient evi­ dence. 103 Morrison's sentence was a suspension for two semesters. 104 How­ ever, after Morrison indicated that he would challenge the conviction under the Sexual Assault Policy, the University conducted a second hearing "to remedy the school's error in prosecuting her complaint under that policy."105 The second hearing was conducted under the Abusive Conduct Policy, and Morrison was found guilty of "using abusive language,"106 and received an identical sentence. Morrison appealed this second conviction, and the Uni­ versity's vice president and provost set aside Morrison's sentence because it "was excessive when compared with other cases where there has been a find­ ing of violation of the Abusive Conduct Policy. "107 Virginia Tech had not informed Christy Brzonkala of the reversal of Morrison's conviction.l°8 Shortly after the decision by the provost, Christy Brzonkala sued Morri­ son, Crawford, and Virginia Tech in federal court. She brought a cause of action against Morrison and Crawford under Section 13981, the civil remedy provision of the Violence Against Women Act,109 which entitles a victim of 102. See id. 103. See id. Morrison admitted sexually assaulting Brzonkala after she told him "no" twice. Id. The record shows that Morrison also bragged throughout the University about having his way with women, and about several lewd and debasing statements he made to Brzonkala. Id. 104. See id. The Dean of Students upheld the sentence and conviction. See id. 105. Id. 106. Id. 107. Id. 108. See id. 109. See id. at 604 (citing Pub. L. 103-322, § 40302,108 Stat. 1941-1942 (1994) (codified at 42 U.S.c. § 13981 (1994)). Section 13981(b) establishes that "All persons within the United States shall have the right to be free from crimes of violence motivated by gender." 42 U.S.c. § 13981(b) (1994). It also provides a cause of action by declaring: 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 moti­ vated 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. 42 U.S.c. § 13981(c). In turn. a crime of violence motivated by gender is defined 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." 42 U.S.c. § 13981(d)(1). A crime of violence, moreover, is an "act or series of acts that would constitute a felony against the person ... and that would come within the meaning of State or Federal offenses described in Section 16 of Title 18 [the federal criminal statute), whether or not those acts have actually resulted in criminal charges, prosecution, or conviction . . . ." 42 U.S.c. § 13981(d)(2). It is not a requirement to file a claim for there to have been a prior criminal complaint, prosecution, or conviction. 42 U.s.c. § 13981(e)(2). Random acts of violence, or violent conduct not motivated by gender are not actionable under the Act. 42 U.s.c. § 13981(e)(1). In addition. federal courts are prohibited from asserting jurisdiction in any divorce. alimony. equitable distribution of marital property, or child custody action that may have been filed in conjunction with a Section 13981 claim. 42 U.S.c. § 13981(e)(4). I ~ 2001] UNITED STATES v. MORRISON 757 gender-motivated violence to sue the aggressor, and against Virginia Tech under Title IX of the Education Amendments of 1972. 110 Morrison and Crawford moved to dismiss her claims against them on the grounds that Sec­ tion 13981, the civil remedy provision, was unconstitutional. Virginia Tech moved to dismiss the Title IX claim for failure to state a claim. III The Fourth Circuit, en bane, concluded that VAWA's civil remedy provision was an un­ constitutional exercise of congressional powers under either the Commerce Clause or Section 5 of the Fourteenth Amendment. lI2 The United States intervened to defend the VAWA's constitutionality. The Supreme Court agreed with the Fourth Circuit and affirmed. A. The Commerce Clause Challenge In affirming the Fourth Circuit, the Court restated Lopez's warning that Congress can regulate commerce only under three broad categories: the use of the channels of interstate commerce; the instrumentalities of interstate commerce or persons or things in interstate commerce; and those activities having "substantial effect" on interstate commerce. lI3 Because the first two Lopez categories did not apply, the civil remedy provision's constitutionality depended on whether it was a proper regulation of activities that "substan­ tially affect" interstate commerce. I 14 VAWA's extensive legislative findings supplied a fully developed account of precisely how gender-motivated violence impacted interstate commerce. I IS The statute presented an impressive record, unlike the GFSZA in Lopez had, showing that the regulated activity'S cost to commerce was at least five to ten billion dollars per year. 116 Congress supported its claim of economic impact by explaining that the type of violence regulated in VAWA "deterr[ed] po­ tential victims from traveling interstate. [prevented them] from engaging in 110. See id. at 604 (citing Pub. L. 92-318. 86 Stat. 373-75 (1972) (codified at 20 U.S.c. §§ 1681-1688 (1994)). 111. See id. The en bane court upheld the district court's dismissal of Brzonkala's Title IX disparate treatment claim, but remanded on her hostile environment claim. The Su­ preme Court did not address these Title IX claims against Virginia Tech. 112. See id. at 605. 113. See id. at 608-09, 114. See id. at 609. 115. See United States v. Lopez. 514 U.S. 549. 562-66 (1995). See also United States v. Wilson. 73 F.3d 675, 685 (7th Cir. 1995) (upholding the Freedom of Access to Clinic En­ trances Act by indicating that Lopez did not "permit[ 1only regulation of economic activi­ ties exclusive of regulations that reach or affect economic activities"); United States v. Dinwiddie. 76 F.3d 913, 920 (8th Cir. 1996) (interpreting Lopez to stand for the proposition that if there is a substantial effect on interstate commerce, then the regulated activity need not be commercial). 116. See S. REP. No. 103-138. at 41, 54 (1993), setting forth Senator Biden's statement that a "partial estimate" reveals that violent crime against women costs this country at least three billion dollars per year. See also Justice Souter's dissent quoting the congressional record showing estimates that the United States spends an estimated five to ten billion dollars per year on health care, criminal justice. and other social costs. Morrison, 529 U.S. at 632 (citing S. REP. 103-138. at 41. 54): Women and Violellce, Hearing Before the Senate Comm. on the Judiciary. IOlst Congo 58 (1990). 758 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No, 4 employment in interstate business, .. and in places involved, in interstate commerce, , . [and] diminish[ed] national productivity, increas[ed] medical and other costs, and decreas[ed] the supply of and the demand for interstate products,"117 The government argued that this record was sufficient to sup­ port the constitutionality of the statute. ll8 A harmonious reading of Lopez (with its reaffirmation of the aggregation principle) implied that the government was correct in its assumption. That is, Lopez suggested that such congressional homework would insulate an Act from constitutional attack. 119 But what was a footnote in Lopez, became the law in Morrison. leo The burden-shifting presumption that went unacknowl­ edged in 1995 led the Court to reject the legislative findings. The Morrison majority held that, "[w]hether particular operations affect interstate com­ merce sufficiently to come under the constitutional power of Congress to reg­ ulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court."121 Thus, the record was of no import in 117. H.R. CONF. REP. No. 103-711, at 385 (1994). reprinted in 1994 U.S.C.C.A.N 1803. 1853. Congress advanced several reasons for enacting the VAWA. The three most promi­ nent of these were that gender-motivated violence is an issue of national scope that should be addressed at the federal level. S. REP. No. 103-138. at 37 (1993); secondly. that the "gender gap" in civil rights law should be closed with the creation of a civil remedy provi­ sion addressing gender-motivated violence explicitly and exclusively. S. REP. No. 101-545, at 41 (1990) (stating that a "national commitment to condemn crimes motivated by gender in the same way" as we condemn crimes motivated by race and religion was necessary); Thirdly, Congress wanted to address the systemic problem of gender discrimination at the state level. See S. REP. No. 103-138, at 49. and H.R. REP. No. 103-711. at 385 (1994). Congress addressed these concerns by increasing penalties for rape convictions in federal courts, see 28 U.S.c. § 994(m) (1994); by criminalizing interstate gender-motivated vio­ lence, see 18 U.s.c. § 2261-62 (1994); by declaring that all protective orders shall have full faith and credit in all the states. see 18 U.S.c. § 2265 (1994). and by providing significant funding for training and education aimed at reducing gender-based misperceptions about violence. see 42 U.S.c. §§ 3796. 13991-4002 (1994). None of these provisions were at issue in Morrison and Congress has reauthorized the VAWA, with funding now set at 3.3 billion dollars. 118. See, e.g.. Kathleen Brickey. Crime Control and the Commerce Clause: Life After Lopez. 46 CASE W. RES. L. REV. 801 (1996) (interpreting Lopez to permit regulation of noneconomic activity if it substantially affects commerce); Kerrie Maloney, Gender-Moti­ vated Violence and the Commerce Clause: The Civil Rights Provision of the Violence Against Women Act After Lopez. 96 COLUM. L. REV. 1876. 1918 (1996) (expressing that so long as the activity is linked to some economic effect. the regulated conduct need not itself be economic); Robert Nagel, The Fu/llre of Federalism, 46 CASE W. RES. L. REV. 643. 648 (1996) (criticizing the dichotomy between economic and noneconomic activities as leading to "absurd" results); see also. Phillip Frickey. The Fool on the Hill: Congressional Findings. Constitutional Adjudication. and United States v. Lopez. 46 CASE W. RES. L. REV. 695 (1996) (indicating that the requirement of legislative findings may be the proper approach to commerce power interpretation). 119. See. e.g.. Glenn Reynolds & Brannon Denning, Lower Court Readings of Lopez, or What if the Supreme Court held a Constitutional Revolution and Nobody Came?, 2000 WISe. L. REV. 369 (2000) (explaining that lower courts. prior to Morrison. have refused to interpret Lopez in broad terms precisely because the Court reaffirmed Wickard and the aggregation principle). 120. See supra note 95. 121. Morrison at 614 (citing United States v. Lopez. 514 U.S. 549.557 n.2 (1995»). .: i 2001] UNITED STATES v. MORRISON 759 this case. The Court stated that the "central" reason for striking down the GFSZA was that it regulated "noneconomic, criminal"122 activity. A crime of violence motivated by gender, like possession of a gun, simply is not an economic activity "in any sense of the phrase," and thus it, too, was unconstitutional. In retrospect, the absence of congressional findings in Lopez, therefore, was of little significance. The Morrison Court identified the problem as one of the congressional reasoning used in translating its findings into legislation, and the concomitant potential effect of this reasoning on the sovereignty of the states. In Morrison, as in Lopez, the Court was concerned that Congress would be able to intrude into areas "where States historically have been sov­ ereign," if Congress could justify legislation on Wickard's aggregation princi­ ple when the activity is noncommercial. 123 The judicial judgment about the nature of gender-motivated violence as an area falling within the police power reserved to the states therefore trumped the legislative decision to regulate an activity that ·had a demonstrable substantial impact on interstate commerce. Morrison makes explicit what Lopez left implicit: the validity of a congres­ sional statute that falls under the third prong of Lopez depends on conse­ quentialist rather than regulatory concerns. It matters not how extensive a legislative record Congress could develop, an issue that was left unsettled after Lopez. What matters is whether the noneconomic, noncommercial ac­ tivity sought to be regulated is one the Court considers to be within a re­ served power of the states. To permit the "but-for" causational link the Court rejected in Lopez if an adequate quantum of evidence supported the regulation would permit Congress to regulate "family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant." 124 If structural concerns arise, the amount of evidence that Congress could deploy to support a clear link to interstate commerce is immaterial. 125 In the Court's words: "The regulation and punishment of intrastate violence that is not di­ rected at the instrumentalities, channels, or goods involved in interstate com­ .1 I I i 122. Id. at 610. Justice Breyer, dissenting in Lopez, pointed out that the dichotomy between economic and noneconomic activities could not be maintained. "Although the majority ... attempts to categorize Perez, McClung, and Wickard as involving intrastate 'economic activity,' the Courts that decided each of those cases did not focus upon the economic nature of the activity regulated." Lopez. 514 U.S. at 628 (Breyer, J., dissenting) (internal citations omitted). Justice Breyer was at a loss for understanding how these cases could be distinguished from the facts of Lopez. 123. See id. (citing Lopez, 514 U.S. at 564). 124. Id. at 616. 125. See id. at 615. I 760 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 merce has always been the province of the States. "126 If there is a structural concern, the state sovereignty presumption wins. l27 B. The Section 5 of the Fourteenth Amendment Challenge The government argued in the alternative that the VAWA was a proper exercise of Congress's Section 5, Fourteenth Amendment powers. 128 This provision authorizes Congress to enforce "by appropriate legislation" the rights enumerated in this amendment. It also permits Congress to "prohibit conduct which is not itself unconstitutional and [to] intrud[e] into 'legislative spheres of autonomy previously reserved to the States.'''129 However, that 126. !d. at 619. The statement that gender-motivated violence is an issue of exclusive state concern renects the assailable societal assumption - and one that the Court endorses ­ that this type of violence is a private, rather than a public issue. See Michele Beasley and Dorothy Thomas, Domestic Violence as a HI/man Rights Issue, in THE PIIBUC NATURE OF DOMESTIC VIOLENCE: THE DISCOVERY OF DOMESTIC ABUSE 323-24 (Martha Albertson Fineman & Roxanne Mykitiuk, eds. 1994) (the "private" nature of domestic violence is very much "public"); Robin West, Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment, 42 FLA. L. REV. 45. 67 (1990) ("The obstacles to women's equal participation in public life ... are so thoroughly ingrained in our societal habits, institu­ tions, and thought patterns that they appear not as obstacles to equality, but as the essence of private life .... The bottom line is that the same reality experienced by the raped wife as a daily ritual of violence, abuse, and horror strikes the feminist as unconscionable state passivity in the face of private subordination and strikes the feminist lawyer as the denial of equal protection."). But by characterizing domestic violence as an issue within a private sphere is to bring forth the problem of federalism. If one understands gender-motivated violence as a crime punishable as a felony, and further one which is pervasive and needs to be addressed, it imposes no more federalism problems than criminalizing drug possession or use, for example. Victoria Nourse, Where Violence, Relationship, and Equality Meet: The Violence Against Women Act's Civil Rights Remedy, 11 WIS, WOMEN'S L. J. 1, 3-4 (1996) (this article provides an excellent account of the struggles to enact the VAWA); see also Deborah Rhode, The "No-Problem" Problem: Feminist Challenges and Cultural Change, 100 YALE L. J. 1731, 1735 (1991) (explaining that gender inequality is not per­ ceived as a serious problem in American society). For an excellent analysis of domestic violence as it has evolved in the legal regime, see generally Reva Siegel, "The Rule of Love:" Wife Beating As A Prerogative And Privacy, 105 YALE L. J. 2117 (1996); Sally Goldfarb, Violence Against Women and the Persistence of Privacy, 61 OHIO ST. L. J. 1, 7 (2000) ("[O]ne of the primary goals of supporters of the Act was to overcome centuries of assumptions about the public and private spheres that have operated to deny women the full equality under the law,"); Dinah Shelton, Private Violence, Public Wrongs, and the Responsibility of States, 13 FORD/lAM INT'L L. J, 1, 17 n,93 (1989/1990). See also Catharine MacKinnon, Disputing Male Sovereignty: On United States v. Morrison, 114 HARV, L. REV, 135 (2000) (explaining Morrison as a basic denial of equality decision, leaving women who are denied equal protection by their states without legal recourse), 127. But see infra notes 131-32, 151 and accompanying text, explaining the disjunction between this understanding and the understanding of Katzenbach v. McClung and Heart of Atlanta Motel, 128. This provision states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of" the Fourteenth Amendment. U.S. CONST. Amend. XIV, sec. 5. 129. Morrison, 529 U.S, at 619 (citing Flores, 521 U.S. at 518). In the context of sover­ eign immunity, the Court has held that this is the only provision under which Congress can abrogate the sovereign immunity of the states and subject them to private causes of action. See Fitzpatrick v. Bitzer, 427 U,S. 445 (1976), and Alden v, Maine, 527 U.S, 706 (1999) 2001] UNITED STATES v. MORRISON 761 I power is limited structurally-to "prevent the Fourteenth Amendment from obliterating the Framers' carefully crafted balance of power between the States and the National Government."130 There is the further restriction that Congress can only reach conduct that involves "state action" and thus may not regulate purely private behavior under this Amendment. l3l Congressional power under Section 5 prior to Morrison had two compet­ ing interpretations: one view authorized Congress to enforce the protections of the Fourteenth Amendment by "appropriate" legislation, which legislation was not limited to remedying violations of rights that were judicially de­ fined. 132 Under this view, the Court held that Congress was empowered to prohibit the use of literacy tests to determine voter eligibility even though the Court had held previously that these types of tests did not violate the Four­ teenth Amendment. 133 The recent view, however, indicates that Congress is prohibited from giving substantive meaning to any provision of the Constitu­ tion, particularly if such meaning is contrary to what the Supreme Court has given it. 134 This federalist conception of congressional power under the Reconstruc­ tion amendments led the Court to strike down the Religious Freedom Resto­ ration Act (RFRA),135 which sought to give substantive content to the Free Exercise Clause, on the grounds that "Congress does not enforce a constitu­ tional right by changing what the right is. It has been given the power 'to enforce,' not the power to determine what constitutes a constitutional viola­ tion."136 And when Congress does attempt to remedy an unconstitutional (holding that Congress lacks the power under Article r to abrogate the sovereign immunity of the states and suhject them to private causes of action in their own courts). But see Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (holding that Congress had exceeded its Section 5, Fourteenth Amendment powers in subjecting the states to private causes of action under the Age Discrimination in Employment Act, hecause states may, consistently with the Equal Protection Clause, rationally discriminate against people on the basis of age). 130. Id. at 620. 131. See, e.g., The Civil Rights Cases, 109 U.S. 3 (1883). 132. See Katzenhach v. Morgan, 384 U.S. 641 (1966) (upholding the constitutionality of the Voting Rights Act of 1965, 42 U.S.c. § 1973h(e)(1)-(2), embracing the argument that Congress could regulate conduct in a way that it would prevent future violations). For the evolution of the doctrinal understandings of the Fourteenth Amendment, see, TRIBE, supra note 2, at §§ 5-14 to 5-16. 133. See Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959) (holding that English literacy requirements as a proxy for voter competence did not violate the Equal Protection Clause of the Fourteenth Amendment absent proof of intentional discrimination). 134. See City of Boerne v. Flores, 521 U.S. 507, 525 (1997) (striking down as unconsti­ tutional the Religious Freedom Restoration Act, which had been enacted to overrule Em­ ployment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) (holding that neutral and generally applicable laws are constitutional-and a strict scrutiny test is therefore not required-even if as applied they hurden certain religious practices)). 135. Puh. L. 103-141. 107 Stat. 1488 (1993), 42 U.S.c. §§ 2000hb to 2000bh-2 (1994). 136. Flores, 521 U.S. at 519. The government had defended the RFRA as consistent with Morgan hecause "if Congress can prohibit laws with discriminatory effects in order to 762 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 state action, "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect."137 Under either view, the question prior to Morrison was whether Congress could reach private conduct under the Fourteenth Amend­ ment as a means to remedying state-aided discrimination. 138 The answer is now clear: it cannot. The civil remedy provision of VAWA, the government argued, was proper legislation under Section 5 because it sought to remedy unconstitutional state conduct. There was extensive evidence in the legislative record that states engage in gender discrimination in the context of prosecuting, charging, and sentencing domestic violence crimes. 139 State-sponsored gender discrimina­ tion plainly violates the Equal Protection Clause unless the discrimination serves important governmental objectives and the means employed are sub­ stantially related to the achievement of those objectives. 14o prevent racial discrimination in violation of the Equal Protection Clause, then it can do the same ... to promote religious liberty." ld. at 529 (internal citations omitted). 137. ld. at 520. The Court found that RFRA lacked this congruence and proportional­ ity requirement because it was an "unwarranted response" to the record compiled by Con­ gress: there simply was no evidence that states enacted laws of general applicability "because of religious bigotry," as was the ease with racial discrimination and the Voting Rights Act addressed in Morgan. See id. at 530 ("While preventive rules are sometimes appropriate remedial measures. there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one." ld. (internal citations omitted». 138. Many commentators thought that United States v. Guest, 383 U.S. 641 (1966) had resolved this question in the affirmative and either overruled The Civil Rights Cases or narrowed them significantly. A plurality opinion in this case expressed the view that Con­ gress had the power under Section 5 "to enact laws punishing ali conspiracies to interfere with the exercise of Fourteenth Amendment rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy." ld. at 782 (Brennan, J., concurring in the judgment). 139. See Morrison, 529 U.S. at 619. 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 insuffi­ cient investigation and prosecution of gender-motivated crime. . . . Petitioners contend that this bias denies victims of gender-motivated violence the equal pro­ tection of the laws and that Congress therefore acted appropriately in enacting a private civil remedy against the perpetrators ... to remedy the States' bias .... ld. (citing H.R. CONF. REP. No. 103-711, at 385-86 (1994); S. REP. No. 103-138, at 38, 41-55 (1993); S. REP. No. 102-197, at 33-35, 41, 43-47 (1991 ». The Senate concluded, on the basis of numerous commissioned studies by various state task forces, that crimes against women are treated less seriously than similar crimes perpetrated against men. "[C]rimes against women are often treated differently and less seriously than other crimes. Police may refuse to take reports; prosecutors may encourage defendants to plead to minor offenses; judges may rule against victims on evidentiary matters ...." S. REP. No. 103-138, at 42 (1993). 140. See Morrison, 529 U.S. at 619 (citing United States v. Virginia, 518 U.S. 515, 533 (1996». 2001] UNITED STATES v. MORRISON 763 The Court nevertheless found this justification wanting because the civil remedy provision was not aimed at state actors, but rather created a cause of action to vindicate "private" conduct that was inconsistent with the goals of the statute. Citing to the Civil Rights Cases,141 and United States v. Harris,142 in which the Court had held that Congress could not regulate private conspir­ acies or conduct that interfered with Fourteenth Amendment rights, the Mor­ rison majority rejected any implication that congressional power could remedy private, as opposed to state-sponsored, discrimination. The government pointed out that in enacting the VAWA, Congress had before it ample evidence that states in fact discriminated against women in the enforcement, prosecution, and sentencing of domestic violence crimes, and thus Harris and the Civil Rights Cases were distinguishable. 143 The Court rejected this distinction because there was "abundant evidence" before the Reconstruction Congress that states discriminated against persons on the ba­ sis of race by underenforcing or not enforcing the civil rights laws in their books. l44 Moreover, even if Congress could reach private conduct when such conduct is alleged to occur as a result of state-sponsored discrimination, the civil remedy provision was not "congruent" or "proportional" to any discrim­ ination on the part of the States that Congress wished to remedy.145 Here, 141. Sec id. at 621. In The Civil Rights Cases the Court struck down the public accom­ modations provisions of the Civil Rights Act of 1875, because they applied exclusively to private conduct. 109 U.S. 3, 11 (1883). Although the validity of The Civil Rights Cases had been called into question in United States v. Guest, 383 U.S. 745, 774 (1966), where a plural­ ity of the Court suggested that The Civil Rights Cases may have been wrongly decided. The Morrison majority rejected any implication that decision may have created that Con­ gress could punish "all conspiracies-with or without state action-that interfere with Fourteenth Amendment rights."' Guest. 383 U.S. at 762. The Morrison majority concluded that the Guest plurality opinion was simply dicta. as the Court had no occasion in Guest to rule on the constitutionality of congressional power to reach private conduct under the Fourteenth Amendment. Rather, Guest included an express allegation of state action. See id. at 756. 142. 106 U.S. 629 (1883). In Harris, the Court struck down Section 2 of the Civil Rights Act of 1871, which punished conspiracies designed to deprive persons of their civil rights, also because it applied exclusively to private persons and not the state. See id. at 639. 143. See Morrison, 529 U.S. at 625-26. 144. See id. To support this assertion, the majority cited the statement of Representa­ tive Garfield and Senator Sumner: "[T]he chief complaint is not that the laws of the State are unequal, but 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." (quoting Congo Globe, 42d Cong., 1st Sess., App. 153 (1871) (statement of Rep. Garfield)). "The Legislature of South Carolina has passed a law giving precisely the rights contained in your 'supplementary civil rights bill.' But such 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 en­ force it.·' (quoting Congo Globe. 42d Cong., 2d Sess., 430 (1872) (statement of. Sen. Sumner)). 145. See Morrison, 529 U.S. at 626 (citing City of Boerne v. Flores, 521 U.S. 507, 526 (1997), and Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 639 (1999)) (holding that Congress's abrogation of state sovereign immunity under Section Five of the Fourteenth Amendment to create a private right of action for , r ! i I I l 764 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 there was simply no consequence to any state, or state official, alleged to have violated a victim's equal protection rights. 146 The civil remedy provision was thus unconstitutional both because Con­ gress had exceeded its powers under the Commerce Clause by seeking to regulate private conduct that had traditionally been the prerogative of the states, and because the Fourteenth Amendment justification lacked the req­ uisite state-action nexUs. But the majority reassured all at the end of the opinion that if Christy Brzonkala's claims were indeed true, then "no civi­ lized system of justice could fail to provide her a remedy for the conduct of respondent Morrison." 147 The irony of this last statement is apparently lost on the majority, for Congress enacted the civil remedy provision precisely because the response to gender-motivated violence was wholly inadequate at the state leveP48 Justice Souter, joined by Justices Ginsburg, Stevens, and Breyer, dis­ sented. 149 The dissent did not examine the Fourteenth Amendment justifica­ tion because they found ample evidence that Congress had the power under the Commerce Clause to enact the statute. ISO The dissent reminded the ma­ jority that the Court's role was not to review congressional judgments for "soundness," but only for "the rationality of concluding that a jurisdictional basis exists in fact." 151 With this presumption in hand, the dissent pointed to the record,152 which in its view amply supported the rational conclusion that gender-motivated violence affects interstate commerce. The dissent found it difficult to distin­ guish VAWA from Wickard and its progeny's substantial effects test. It found no difference between restaurants and hotels that discriminated against peo­ patent infringement against the state was not "congruent" or "proportional" to the evil sought to be remedied, namely, patent infringement. The Court found no evidence that States widely engaged in patent infringement, nor was there evidence that all states did so. Thus a remedy directed to all states regardless of the availability of state remedies was not a congruent and proportional response to any alleged claim of infringement). 146. See Morrison, 529 U.S. at 626. 147. [d. at 627-28. Indeed, 26 states filed amicus briefs urging the Court to sustain this provision. As Justice Stevens pointed out, this was a victory for the states despite the states. This blind faith in a State's ability to provide adequate remedies echoes Justice Kennedy's belief in Alden that States still will comply with federal law in good faith, even in the absence of private rights of action. Alden v. Maine, 527 U.S. 706,754-55 (2000). 148. As was the case in Alden, it was precisely because Maine had refused to abide by the mandates of federal wage and hour laws that Alden sued the state to recover overtime wages. In that case, too, Justice Kennedy's majority opinion reassured us that the "good faith" of the states will ensure that they comply with federal law even if there is no private right of action available. Alden, 527 U.S. at 755. See also MacKinnon, supra note 126, explaining Morrison as a basic denial of equality decision. 149. See Morrison, 529 U.S. at 627-28 (Souter, J., dissenting). 150. See id. 151. [d. at 629-31. 152. See supra note 78 and accompanying text. 2001] UNITED STATES v. MORRISON 765 pie on the basis of race and that conduct's effect on interstate commerce,153 and the interstate commerce effects of gender-motivated violence, particu­ larly in light of the congressional findings supporting the statute. 154 The dis­ sent concluded that the VAWA would have been sustained had it been challenged after 1942, the year Wickard was decided, and before 1995, the date of Lopez. J55 III. A. MORRISON'S IMPLICATIONS: ITs VIRTUES AND ITs QUANDARIES The Virtues 1 I .J I I f This Court is deeply concerned with congressional hegemony and its con­ comitant implications for the sovereignty of the states. Indeed, some argue that "the commerce power has swelled to a proportion that would leave the framers 'rubbing their eyes' with amazement."156 Troubled by this ever-en­ larging congressional power, the Court has clenched onto "first principles" as its federalism fulcrum. It has converted the philosophy of a government of limited and enumerated powers into the principal interpretive tool for most decisions touching upon dual federalism. Some commentators believe that First Principles Federalism "'reflect[s] the best of what the Framers intended."157 The Court's return to "dual federalism" as a central organizing principle of its judicial federalism has, at a minimum, changed the way our government does business. It forces Congress to pay attention to federalism limits when drafting legislation that touches upon a state concern. This decreed approach can be beneficial. As Professor Ann Althouse stated, the Court "deserves some credit [for being] reasonably moderate and responsive to the needs of the competing institutions: the states, the Congress, and the courts themselves,"158 Congress now must pay close attention to the impact on the states that a particular federal measure will have, Congress attaches "federalism reserva­ tions" to the ratification of our treaties,159 there are three "federalism" bills 153. See Heart of Atlanta Motel v. United States. 379 U.S. 241 (1964), and Katzenbach v. McClung. 379 U.S. 294 (1964) (upholding the constitutionality of Title II of the Civil Rights Act of 1964). 154. See Morrison, 529 U.S. at 635-36. 155. See id at 637. 156. Ann Althouse, The Alden Trilogy: Still Searching for a Way to Enforce Federalism, 31 RUTGERS L. J. 631, 658 (2000) (citing Alden, 527 U.S. 706, 807 (1999)). 157. Marci Hamilton. The Elusive Safeguards of Federalism, available at Social Science Research Network Electronic Paper Collection, http://papers.ssrn.com/soI3/papers.cfm? cfid=429182&cftoken=79652932&abstracUd=245808 (posted Nov. 14,2000). 158. Althouse, supra note 156, at 689. 159. See, e.g., the "federalism" reservation the United States attached to its 1993 ratifi­ cation of the International Covenant on Civil and Political Rights, entered into force Dec. 19,1966,999 U.N.T.S. 171, reprinted in 6 LL.M. 368. "[T]he United States understands [in regard to Article 50 (federalism)] that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the mat­ ters covered therein. and otherwise by the state and local governments: to the extent that state and local governments exercise jurisdiction over such matters, the Federal Govern­ t l J 766 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 pending,160 the President has issued a federalism executive order mandating that state agencies take state interests into account when issuing regula­ tions,161 and the country is talking about the "reserved" power of the States with the same passion as it does about freedom of speech and other civil liberties deemed fundamental to our system. 162 We are also reexamining what kinds of "rights" fall under the Fourteenth Amendment, and are scruti­ nizing whether states are obligated to protect them at the level Congress dictates. 163 These are salutary consequences because some believe that Congress is incapable of policing itself given the structural political complexities of its composition. Judicial federalism thus has served to put limits on congres­ sional eagerness to impose liability on the states uncritically, while the states struggle to balance the infinite demands on their resources. 1M In addition, the "political accountability" thesis of First Principles Federalism forces Con­ gress to remain accountable to the electorate for unpopular policy choices, rather than to shift that onus to the states. 165 Moreover, the type of judicial federalism this Court has deployed to place limits on Congressional power restrains Congress very little. These cases "re­ present an evolution rather than a revolution."166 The Court simply has is­ sued a structural reminder. This brand of judicial federalism is certainly not a ment shall take measures appropriate to the Federal System to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfill­ ment of the Covenant." 138 CONGo REC 54783-84 (daily ed. Apr. 2, 1992). 160. See Federalism Preservation Act of 1999, H.R. 2950, 106th Congo (1999): Federal­ ism Act of 1999, H.R. 2245 106th Congo (1999); Federalism Accountability Act of 1999,S, 1214, l06th Cong, (1999), 161. See Exec, Order No, 13,083.63 Fed, Reg. 27.651 (1998) (President Clinton's exec­ utive order entitled "Federalism"); Exec. Order No, 12,372,47 Fed. Reg, 30,959 (1982) (President Reagan's executive order entitled "Intergovernmental Review of Federal Pro­ grams"); Exec, Order No, 12.612,52 Fed, Reg, 41,685 (1987) (President Reagan's executive order entitled "Federalism"), 162, See, e.g., Herman Schwartz, An Out-of-Control Court, THE NATION, Mar. 26, 2001, at 6, available at 2000 WL 2132397; see also Adam Thierer, Federalism Reform: Seven Options for Congress, THE HERITAGE FOUNDATION BACKGROUNDER, No, 1245, Jan. 27. 1999, available at http://www.heritage.org/librarylbackgrounder/bg1245es.html. 163. Kimel and Garrett hold that Congress cannot punish state conduct under the Four­ teenth Amendment that is otherwise constitutional. That is to say, it is ratiollal, the Court held, to discriminate on the basis of age and disability. See, e.g., Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); United States v. Morrison, 529 U.S. 598 (2000); Board of Trustees of Univ. of Ala. v. Garrett. 121 S. Ct. 955 (2001) (holding that Congress exceeded its powers under Section Five of the Fourteenth Amendment in abrogating the sovereign immunity of the states and subjecting them to suit under the Americans with Disabilities Act); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 666 (1999) (holding that Congress cannot hold states accountable for negligent, as opposed to willful, patent infringement). See also Althouse, supra note 156, at 686 (stating that "some good will come of arguing about and deciding what Fourteenth Amendment rights really are"). 164. See Ann Althouse, all Dignity and Deference: The Supreme Court's New Federal­ ism, 68 U. CIN. L. REV. 245, 255 (2000). 165. See, e.g., New York v. United States, 505 U.S. 144, 161 (1992). 166. Choper & Yoo, supra note 25, at 9. ,.I: 1 1: I ! l I' I 2001] UNITED STATES v. MORRISON 767 "stunning rejection of the modern welfare state. Nor does it necessarily an­ nounce the revival of strong norms of states' rights. "167 Congressional power remains capacious to a degree unimagined at the framing of the Constitu­ tion. 168 The current conservative majority deserves the credit for converting struc­ tural concerns into constitutional limitations. The Constitution is premised on the existence of the states as meaningfully independent entities,169 and preventing the subordination of state interests and indulgence of federal overweening power is a proper concern in a federalist system. If the notion of a government of limited and enumerated powers is to have any signifi­ cance-and regardless of the normative values of federalism one espouses, "Congress must be prevented not only from formally destroying states but also from acting in ways that would leave a state formally intact but function­ ally a gutted shell."170 Some commentators argue that the Court has chosen a moderate, as opposed to extreme, path to balance the values that are im­ plicit in a system where states matter in a significant way.17l The current Court has acted on these values by setting limits on what the federal govern­ ment can do and how it can do it when state interests are implicated. In doing so, however, the Court raises two serious questions: (1) whether the Court is the appropriate body to address this concern; and (2) whether the specific methods the Court has used to constitutionalize our federalism are consistent with rule-of-law values. My conceptual exploration of Morrison has touched on the latter and has assumed arguendo the validity of the former. B. The Quandaries First Principles Federalism compromised the reliability, predictability, and justification values of the rule-of-law. In its desire to curb federal power and to preserve a proper sphere for state autonomy, the Court has failed to set forth factors that would guide the outcome of a decision or guide Congress in its legislative choices. 172 For example. it is unclear whether a fully developed legislative record would ever suffice to justify commerce clause legislation, if in the Court's judgment the activity sought to be regulated is not commercial or economic-like. Likewise unclear is whether Congress can regulate com­ mercial activity if the regulation transgresses a sovereign entitlement of the 167. !d. See also Mark Tushnet. Mr. Jones & The Supreme Court, 4 THE GREEN BAG 173. 173 (2001) (stating that "[d]escribing the Court's [current decisions] as pre-New Deal libertarianism seems wildly to overstate what the Court has actually done."). 168. Choper & Yoo. supra note 25. at 10-15; see also Hamilton, supra note 157; Alt­ house, supra note 164. at 268. 169. See TRIBE, sllpra note 2, at 865. 170. Id. 171. See Althouse, supra note 164. at 268. 172. Choper & Yoo, supra note 25 (explaining that Morrison "declares the Court's firm intention to restore limits on Congress's basic power to regulate private individuals as well.·· Id. at 2). 768 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 States. 173 That an issue of such immense importance to congressional power and thus to government operation now is solely "dependent upon a uniquely judicial competence,"174 is disconcerting. Indeed, the judicial characteriza­ tion is dispositive of the constitutionality of the statute. The formalism with which the Court extols these issues is unsettling. For­ malism simply is not an adequate substitute for judicial analysis and in the federalism cases has led to substantial confusion rather than to clear rules. For example, the Court's apparent insistence on the formality of a jurisdic­ tional element to cure the constitutional defect of the GFSZA, proved to be of little importance. Thus, the Court's formalism not only may be wholly illusory. but also underexplained. Careful readers, even if they embraced the Court's normative assumptions, can find little in the cases to guide them with any degree of assurance.ns Why? How? The "why" is because the lines the Court has chosen to draw in this area seem arbitrary and lack explanation. The categories the Court described are "so clearly overbroad that they cannot provide serious gui­ dance to figure out where Congress can and cannot regulate."176 An arbitrary rule, without an accompanying justification is just that: arbitrary and it lacks reliability. The "how" is because an arbitrary rule, stemming as it does from irreconcilable normative assumptions about the nature and function of gov­ ernment simply cannot provide guidance for future behavior where the "what" is missing. Predictability is compromised without adequate explana­ tion. That is, in the final analysis "what" aspects of state sovereignty are so fundamental that one would recognize a congressional act as unconstitutional if it intruded upon them is an essential building block for the Court's deci­ sions. But the "what" remains a mystery, as does the "why." One could see an example of the compromised rule-of-law values in these cases themselves. The Morrison Court reaffirmed Wickard and its progeny and stated, as explained above, that those cases addressed statutes that in­ volved economic activity of some sort. But it is unclear why the VAWA could not have been conceived as part of a "larger regulatory effort to eliminate gender-based violence as a barrier to job opportunities,"177 much like the as­ applied challenges of Wickard, McClung, and Heart of Atlanta, were part of a larger regulatory concern with the impacts of intrastate, local activity on in­ terstate commerce. If this Court were deciding issues of first impression, one 173. See Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992) (striking down congressional legislation that Congress admittedly had the power to enact because it offended the Tenth Amendment and violated the structural prin­ ciples of "dual federalism."). 174. United States v. Morrison, 529 U.S. 598, 638 (2000) (Souter, J., dissenting). 175. See. e.g., Robert Post & Reva Siegel, Equal Protection by Law: Federal Antidis­ crimination Legislation after Morrison and Kimel, 110 YALE L. J. 441. 443-44 (2000) (ex­ plaining the lack of predictive value these cases have). 176. Tushnet, supra note 167, at 173. 177. Brzonkala v. Virginia Polytechnic Institute and State Univ., 132 F.3d 949, 972 (4th Cir. 1997), overruled 169 F.3d 820, 825 (4th Cir. 1999) (en bane), affd sub nom, United States v. Morrison, 529 U.S. 598 (2000). 2001) UNITED STATES v. MORRISON 769 could see the legitimacy, at least as a textual matter, of restricting the scope of the Commerce Clause to reach solely commercial or economic activities. That is to say, in the abstract, this might be a permissible and principled inter­ pretation of the reach of this provision. The problem, of course, is that the Court is not starting on a blank page, unadorned by matured conceptions of what the Clause requires or permits. The rich historical and doctrinal history of the Commerce Clause should give the Court pause before it rewrites sixty years of settled understandings with a revisionist account of what the Court meant prior to Lopez. At a minimum, the Court should acknowledge that it is starting anew and should justify its decision to do soYs There is something deeply unsettling about an unelected Supreme Court striking down congres­ sionallegislation without explaining, for all to evaluate, the theories support­ ing its decisions. 179 Reason-giving gives the Court legitimacy and its decisions persuasive stay­ ing power. 1SO Some commentators reflect this concern by calling upon the Court "to explain why institutional arrangements that have worked for more than two centuries have suddenly ceased to do so, and why we should em­ bark on what is, in fact, a radical experiment in judicial activism."181 It may well be that the conservative majority deeply believes that it is interpreting the Constitution in the only acceptable fashion that would preserve the struc­ 178. Others disagree. See. e.g.. Cass Sunstein, Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4.6 (1996) (describing the phenomenon of judicial opinions saying no more than what is necessary to decide a case). 179. Leaving the wrong impression about what has been said is critical, Professor Sha­ piro states. "[DJoes the speaker intend -or he is indifferent to the fact-that the omission will render the statement he has made misleading in some material way?" David Shapiro, In Defense of Judicial Candor. 100 HARV. L. REV. 731. 733 (1987). 180. See, e.g.. Michael Dorf. Courts, Reasons, and Rules, 19 Q.L. REV. 483,502 (2000) (reviewing Professor Frederick Schauer's works on legal reasoning). The reason we accept as conventional the reason-giving justification of Supreme Court decision-making, Profes­ sor Dorf argues. is because of power: The enacters of a constitutional provision or statute earn the right to insist on their concrete applications by virtue of their supermajoritarian or majoritarian status. We may hope that constitutional provisions and statutes are the product of principled decision-making and try to interpret them so as to respect public reason: but we know from experience that legislation and even-perhaps espe­ cially--eonstitution-making. thrive on compromise. Ultimately. a statute or con­ stitutional provision is the law because it emanates from an authoritative source. We are, to this extent. nearly all positivists. Id. at 499. Professor Dorf makes distinctions between rule-like opinions. which is a task more appropriately left to the legislature. and reason-giving opinions, which describe a rule on the basis of a reason for its creation or application. See Michael Dorf. Dicta and Article III, 142 U. PA. L. REV. 1997,2029 (1994): A justice who refuses to explain her decisions might not thereby commit an im­ peachable offense, but she would lose the respect of the legal community, which. in the long run. would undermine her ability to translate her views into law. For the judiciary, giving reasons justifies the exercise of governmental authority, much as elections justify its exercise by the political branches. 181. Larry Kramer, Putting the Politics Back Into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 290 (2000). 770 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 tural guarantees of dual sovereignty.182 But in displaying a deep distrust of Congress as a whole, it is evidencing a shortsightedness for the consequences of its decisions, which consequences go well beyond the particular statute struck down.I 83 It would aid the legitimacy of the Court to be able to explain whyl84 these decisions are correct when viewed against reaffirmed, inconsis­ tent precedents, other than to say because five is a majority of nine, even when Justice Souter is in the dissent. 185 One could object to this observation by pointing out that, however flawed, the Court has given "reasons" for curtailing congressional power in this in­ stance: violence is just not commerce. But this is not a reason as much as it is a conclusion based on a preconceived assumption about what federalism lim­ its require the Commerce Clause to mean. 186 This leads me to my final point. Aside from the interpretive difficulties stemming from the Court's ap­ proach, the normative consequences of Morrison and its predecessors are problematic. The Court has disempowered Congress from regulating in a wide range of areas that are truly of national concern, and for which an ex­ plicit textual source of power arguably exists; it has sacrificed political and economic efficiency at the altar of state sovereignty, without an adequate explanation as to why this should be the state of affairs when this value­ choice is inconsistent with the original understanding. 187 In cases where the Court deems the exercise of congressional power to be at its apogee, the states have become the "discrete and insular minorities" of judicial federal­ ism,188 although there is no compelling government interest exception to the categorical rule. I think it is unhelpful to justify Morrison and its predecessors by sug­ gesting that the Court is encroaching on legislative power only very little; that there are vast areas remaining for Congress to regulate. 189 This statement may be true as far as it goes, but the justification simply tosses aside the question of legitimacy rather than addresses it head on. That Congress can still legislate in a wide variety of areas does not render legitimate the Court's 182. "Hell is paved with good intentions." John Ray, English Proverbs (1670), in JOHN BARTLEIT, BARTLEIT'S FAMILIAR QUOTATIONS 136 n.8 (15th ed. 1980). 183. See, e.g., Choper & Yoo, supra note 25, at 18 (explaining that the economic activ­ ity limitation as one "never before clearly articulated."). 184. Jeffrey Rosen questions whether "this aversion to deep reason-giving [is] some­ thing to be celebrated ... or is ... a form of judicial self-aggrandizement masquerading as modesty?" Jeffrey Rosen, The Aged of Mixed Results, THE NEW REPUBLIC, June 28, 1999, at 43, 44. But see CASS SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALlSM ON THE SUPREME COURT 3-61 (1999): CASS SUNSTEIN, LEGAL REASONING AND POLITICAL CON­ FLIer 35-62 (1996) (urging the value of opinions that are undertheorized). 185. This phrase is borrowed from John Hart Ely. The Irrepressible Myth of Erie, 87 HARV. L. REV. 693, 697 (1974) ("But the Supreme Court is the Supreme Court, and seven is a majority of nine even when Justice Harlan is one of the two,"). 186. See, e.g., Michael Dorf. Prediction and the Rule of Law, 42 u.c.L.A. L. REV. 651 (1995) (explaining the value of prediction in judicial decisionmaking). 187. See Kramer, supra note 181: but see Hamilton. supra note 157 (asserting that Pro­ fessor Kramer is just wrong about the original understanding). 188. United States v. Carolene Prod. Co., 304 U.S. 144, 153 n.4 (1938). 189. See, e.g., John Yoo & Choper. supra note 25 at 10-14. 2001] UNITED STATES v. MORRISON 771 pronouncement that it cannot legislate in this particular one. 190 I think this imperceptible-consequence defense underrates the importance of what we ought to expect from the judicial function and what the rule-of-law requires. This justification only leads observers to suggest that Lopez was but a bleep on the radar screen of congressional legislation,191 that ALden and its sover­ eign immunity rule would never happen, and that Morrison simply could not be. But it was not, it did and it is. There is agreement, of course, that we want neither to eliminate the states as effective political entities, nor return to the regime existing under the Arti­ cles of the Confederation. So the federalism discourse lies within a contin­ uum, and where we strike the balance depends at the level of generality or specificity at which we define the very issue to be decided. 192 We can all agree that we are a government of limited and enumerated powers. But to the extent we disagree what this abstract principle requires, mandates, or prohibits in terms of government conduct, the basic normative propositions are fundamentally irreconcilable. 193 Either we think it consistent with dual 190. Professor Amar explains: Yes, violence against women may be an economic issue of sorts. It is defi­ nitely a national problem-that is, a problem everywhere. But is it truly a federal problem-that is, an inter-state problem, a problem among or between the sev­ eral states, a problem involving genuine interjurisdictional spillovers? If not, then the majority has a plausible argument that the Interstate Commerce Clause is an inapt basis for federal power. Candid supporters of VAWA can concede that the issue of violence against women is not mainly an economic one, or chieHy an interstate one. The deepest concern is not about GDP or about things that cross or spill over state lines. Indeed, the main goal may not even be to ensure women's access to courtrooms. ,f In other words. VAWA is largely symbolic. lbat does not make it unimpor­ tant or unconstitutional. Akhil Reed Amar, Foreward: The Document and the Doctrine, 114 HARV. L. REV. 26, 102­ 04 (2000). 191. See, e.g., Donald Regan, How to Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 MICH. L. REV. 554, 554 (1995) (stating that Lopez is unlikely to initiate a constitutional revolution in restricting congressional power); See also Merritt, supra note 48. at 676 (Lopez represents a limited rein on congressional power, if an important one). 192. This analogy derives from Professor Dorf's explanation in his article cited supra note 180, in which he explains that "there is disagreement as to what the equality norm requires in different contexts: there is agreement that the concept of equality is a legal norm, but disagreement about the proper conception of equality." Dorf, supra note 180. at 501. "Indeed, it will often be the case that even where there is agreement at the mid-level of conception, there remains disagreement about more specific applications." ld. 193. The Fourth Circuit's en banc decision reHects this fundamental normative disa­ greement. The majority opinion opens by stating: We the People. distrustful of power. and believing that government limited and dispersed protects freedom best. provided that our federal government would be one of enumerated powers. and that all power unenumerated would be reserved to the several States and to ourselves. Thus. though the authority con­ ferred upon the federal government be broad. it is an authority constrained by no less a power than that of the People themselves. "[T]hat these limits may not be mistaken. or forgotten. the constitution is written." These simple truths of power 772 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 27, No.4 federalism that Congress can create remedies to alleviate the national, social ill of gender-motivated violence, or we believe that this type of regulation is not consistent with certain structural imperatives. But the reasons we give for accepting one proposition or the other may help advance the conversation. 194 Some point of agreement is necessary because these decisions fail as con­ stitutional catalysts for change. Declarations without justifications do not ad­ dress the conflicting assumptions we bring to the deliberation. What these decisions do, however, is produce a mutilated constitutional amalgam that leads those who disagree with the underlying normative principles to search for alternative sources for altered aspirations,195 rather than begin to accept the wisdom of a competing conception of our system. IV. CONCLUSION The legitimacy of the Court's decisions, as well as their staying power, de­ pends on the perception that its decisions stem from something other than a simple majority's ideological or political proclivities. 196 As Justice Scalia pointed out in Dickerson v. United States,197 the requirement that constitu­ tional rules make sense "is the only thing that prevents this Court from being some sort of nine-headed Caesar, giving thumbs up or thumbs down to whatever outcome, case by case, suits or offends its collective fancy."198 And Justice Scalia's insight captures Morrison's essential flaw. Constitutional and interpretive legitimacy is Morrison's most significant obstacle to becoming a permanent staple in Commerce Clause jurisprudence. For constitutional doc­ trine to have staying power it needs the support and understanding of the bestowed and power withheld under the Constitution have never been more rele­ vant than in this day, when accretion, if not actual accession, of power to the federal government seems not only unavoidable, but even expedient. Brzonkala, 169 F.3d at 825-26 (citations omitted). pl1erefore,j [t jhese foundational principles of our constitutional govern­ ment dictate resolution of the matter before us.... Such a statute, we are con­ strained to conclude, simply cannot be reconciled with the principles of limited federal government upon which this Nation is founded. ld. at 825-26. 194. See Dorf, supra note 180, at 501. Professor Fallon equates the ideal of reason­ giving in judicial decisions with a Legal Process theory of the Rule-of-Law. See Fallon, supra note 32, at 30-33. Professor Fallon also explains that one characteristic of identifying a value for a rule-of-law ideal is to engage particular decisions to explain why they fall short of the ideal or meet the ideal. See id. at 41-45. 195. See, e.g., Ana Maria Merico-Stephens, Challenging the Five-Headed Caesar: VAWA, Federalism, and the Treaty Power (forthcoming 2(01) (manuscript on file with the author), arguing that VAWA's civil remedy provision could be re-enacted under the Treaty Power as implementing legislation for the International Covenant on Civil and Political Rights. 196. See, e.g., Bradford Clark, Translating Federalism: A Structural Approach, 66 GEO. WASH. L. REV. 1161, 1164 (1998) (explaining that decisions based on political proclivities "cannot be squared with the text of the Constitution, [and thus] their legitimacy is likely to be contested and their enforcement likely to appear 'political''' and would threaten the fundamental structural requirement of separation of powers). 197. 530 U.S. 428 (2000). 198. ld. at 455 (Scalia, J., dissenting). 2001 ] UNITED STATES v. MORRISON 773 polity, who in turn believes in the legitimacy of the doctrine, in part because it is consistent with rule-of-law values. Moreover, the enforcers of that doc­ trine need to understand its meaning and implications so as to apply it to the cases that come before them in some principled fashion. And so Morrison has staying power only to the extent that the Court's portrayal of limited powers-and the corresponding methods of limiting them-is a legitimate restriction as a constitutional matter, in addition to it being understandable as an interpretive principle. The discussion above reflects that the case may rest on very precarious ground. The animating concern of the current conservative majority is to protect state sovereignty as a value for its own sake. Morrison represents but the next chapter of the Court's indefatigable effort to place some formal limits on federal power. This effort has resulted in a state sovereignty presumption in some of the most difficult areas of congressional power. This preference for state sovereignty has become the driving force in constitutional interpre­ tation without an accompanying explanation about why this value supersedes the value derived from arguably constitutional national legislation that ad­ dresses an explicit national problem. This burden-shifting presumption, in turn, has lead to an incoherent doctrine that threatens to destabilize our shared understandings about our governmental structure and calls into ques­ tion the very legitimacy of the Court.