Amicus Curiae Brief — Brzonkala v. Morrison (Nos. 99-29, 99-5)

DEc (© 9) Nos. 99-5; 99-55

Supreme Court, U.S,

FILEQ

: C10 1999

In The | al :

Supreme Court of the United

¢

UNITED STATES OF AMERICA,

Petitioner,

V.

ANTONIO J. MORRISON, et al.,

Respondents.

°

CHRISTY BRZONKALA,

- Petitioner,

ANTONIO J. MORRISON, et al.,

Respondents.

*

On Writ Of Certiorari To The United States Court

Of Appeals For The Fourth Circuit

+

BRIEF OF THE INSTITUTE FOR JUSTICE

AND THE CATO INSTITUTE AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

¢

*RicHarp A. Epstein

1111 East 60th Street

Chicago, IL 60637

(773) 702-9563

INSTITUTE FOR JUSTICE

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Cunt Bouicx

Scotr G. BuLLock

Suite 200

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(202) 955-1300

Cato INsTITUTE

Rocer Piton

Tuwotny LyNcH

Rosert A. Levy

1000 Massachusetts Ave., NW

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*Counsel of Record

BEST AVAILABLE COPY fim

TABLE OF CONTENTS

Page

See Cae SD 9.08 oss hkedeidccucecedeuns iii

INTEREST OF AMICI CURIAE. ............ccccceecs l

ST We I oo das vdosacdcccVsdusaebemes l

SUMMARY OF ARGUMENT ....................... 3

SI 0 0504404046 do acedalesenedntbekn cane 6

1. CONSTITUTIONAL STRUCTURE, TEXT, AND

HISTORY ALL SHOW THAT CONGRESS'S

POWER UNDER THE COMMERCE CLAUSE IS

Ss 9 40606 sbée een dvecdeuesceueuanueneue 6

Il. THE VIOLENCE AGAINST WOMEN ACT IS

NOT AUTHORIZED UNDER THE COMMERCE

CLAUSE AS INTERPRETED IN UNITED STATES

Se QUA hi dn cucecWecedacedennnkeevkbendsuess 14

A. Lopez Confines Congress’s Power Under The

Commerce Clause To Matters That Have A

Substantial Effect On Economic Liberty ..... 14

B. The Rational Basis Test Does Not Save VAWA

Under The Commerce Clause.... .......... 15

C. The Gun-Free School Zones Act, As Amended,

Is Not Saved By Congress’s Ostensible Legis-

ee SE Sididn osews rs vatncendabiekes 17

D. Congress’s Findings Do Not Provide A Ratio-

nal Basis To Think That The Private Right Of

Action Under VAWA Falls Within The Scope

Of Its Commerce Clause Power............. 20

Ill. THE VIOLENCE AGAINST WOMEN ACT IS

NOT AUTHORIZED UNDER SECTION 5 OF THE

FOURTEENTH AMENDMENT ................. 24

TABLE OF CONTENTS - Continued

Page

A. The Guarantees Of The Fourteenth Amendment

Protect Individuals Only Against State Action... 24

B. The Congressional Findings Offered In Sup-

port Of VAWA Do Nothing To Fix The Juris-

dictional Gaps In The Petitioners’ Case ..... 26

Cc. cCeCeVeGeeeebCadecesvccvevccevces 29

ON ee

TABLE OF AUTHORITIES

Page

Cases

American Trucking Ass'ns v. Scheiner, 483 U.S. 266

Phikdéewdesebesddduteteasetecetasieéieeacees 12

Brzonkala v. Morrison, 935 F.Supp. 779 (W.D. Vir.

1996, aff'd in part, 132 F.3d 949 (4th Cir. 1997)..... 3

Brzonkala v. Morrison, 169 F.3d 820 (4th Cir. 1999) ..3, 13

City of Boerne v. Flores, 521 U.S. 507 (1997)...... 25, 28

District of Columbia v. Carter, 409 U.S. 418 (1973).... 25

Employment Division v. Smith, 494 U.S. 872 (1990) .... 26

Ferguson v. Skrupa, 372 U.S. 726 (1963).............. 16

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)

DMR dence ad beh daes cunadhées eas 4, 8, 9, 11, 13

Gregory v. Ashcroft, 501 U.S. 452 (1991)............... 8

Heart of Atlanta Motel v. United States, 379 U.S. 241

Dt tinddtn leh pt hieteseerseusaasesedesestess 13

Houston E. & W. Texas Ry. Co. v. United States, 234

i ns) citennaduaduedeedeseeeedseeeoess 9

H.P. Hood & Sons v. Du Mond, 336 U.S. 525 (1949). ..10, 11

Kidd v. Pearson, 128 U.S. 1 (1888).................4.4.. )

Marbury v. Madison, 5 U.S. 137 (1805)............... 30

Maryland v. Wirtz, 392 U.S. 183 (1968)............... 13

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. |

tire bint ee ei Cen teak baoeedesueiond 9, 10

Oregon v. Mitchell, 400 U.S. 112 (1970) .............. 28

iv

TABLE OF AUTHORITIES — Continued

Page

Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S.

§ Gv cccccccnsevesdéssubsdeedeceucsencusaseenés 8

Sherbert v. Verner, 374 U.S. 398 (1963)............... 26

The Civil Rights Cases, 109 U.S. 3 (1883)...... 25, 27, 29

United States v. Darby, 312 U.S. 100 (1941)........... 13

United States v. E.C. Knight Co., 156 U.S. 1 (1895)

9006e00enseensenbhtieessadenvesssensseeseaeuel 4, 9, 15

United States v. Guest, 383 U.S. 745 (1967)........ 25, 29

United States v. Harris, 106 U.S. 629 (1883) .......... 25

United States v. Lopez, 514 U.S. 549 (1995)....... passim

Veazie v. Maor, SS U.S. SEB (1GS3S).. 2... cece cccccccees 9

Wickard v. Filburn, 317 U.S. til (1942) .......... passim

Wisconsin v. Yoder, 406 U.S. 205 (1972) .............. 26

Wisconsin Railroad Commission v. Chicago, Bur-

lington & Quincy Railroad, 257 U.S. 563 (1922)..... 11

CONSTITUTION

Pe Gee, Oe, GED. ccaseccdéodevedenbanddeulemeus 1, 12

ae, Gee, Ge. &. Gt. cateedetbeuncoseunsenbiaetl 8, 12

STATUTES

18 U.S.C. §922(q) (Gun-Free School Zones Act of

Se :ecedsneséendesnecéetdsmeceansnen 4, 14, 17

42 U.S.C. §§2000bb, et seq. (Religious Freedom Res-

UE | a a ee 25

TABLE OF AUTHORITIES — Continued

Page

24 Stat. 379 (1887) (Interstate Commerce Act of

a a a i 4

49 Stat. 449 (Wagner Act, ch. 372) .................... 9

Title IX (Civil Rights Act of 1964).................... 2

Violence Against Women Act (VAWA), §13981 ....2, 3, 5, 27

MISCELLANEOUS PUBLICATIONS

Craven, Sex Differences in Violent Victimization

(Bureau of Justice Statistics, Sept. 1997)............ 22

Criminal Victimization 1994 (Bureau of Justice Statis-

Fe SUN a on WeebSbRbenndceecscestencecéuces 28

Criminal Victimization 1996 (Bureau of Justice Statis-

a a a i we a 22, 28

Donohue, Schiraldi, and Ziedenberg, School House

Hype: School Shootings and the Real Risks Kids

Face In America (Justice Policy Institute 1999)...... 19

Hearing on the Violence Against Women Act Before

the Subcomm. of Crime and Criminal Justice of the

House Comm. of the Judiciary, House of Represen-

tatives, Second Session, June 30, 1994, Serial No.

Si Vadkoubkssdebeddsdedmdunistaeddundssetetecese<s 22

Lessig, Translating Federalism: United States v.

Lopez, 1995 Sup. Ct. Rev. 125 (1995)............... 11

Schools the Safest Place for Kids (NEA Focus, Aug.

St, Sedelscddoubdines dbudhsubaudiveeekdece see 19

Stern, The Commerce Clause and the National Econ-

omy 1933-1946, 59 Harv. L. Rev. 645 (1946)......... s

Laurence Tribe, American Constitutional Law (1987) . .8, 16

=—

———

“a

l

INTEREST OF AMICI CURIAE

The Institute for Justice is a nonprofit public interest

legal center committed to defending the essential foundations

of a free society through securing greater protection for indi-

vidual liberty and restoring constitutional limits on the power

of government. Central to the mission of the Institute is

guaranteeing that Congress be limited to its enumerated

powers under Article I, Section Eight of the U.S. Constitu-

tion.

The Cato Institute was established in 1977 as a nonpar-

tisan public policy research foundation dedicated to advanc-

ing the principles of individual liberty, free markets, and

limited government. Cato’s Center for Constitutional Studies

was established in 1989 to help restore the principles of

limited constitutional government, especially the idea that the

U.S. Constitution establishes a government of delegated, enu-

merated, and thus limited powers. Toward that end, the Insti-

tute and the Center undertake a wide range of publications

and programs. The instant case raises squarely the question of

the limits on Congress’s power under the doctrine of enumer-

ated powers and thus is of central interest to Cato and the

Center.

This brief is co-authored with Professor Richard A. Eps-

tein, one of the nation’s leading authorities on constitutional

law. Professor Epstein has authored numerous articles on

constitutional jurisprudence and the Commerce Clause.!

STATEMENT OF FACTS

This case arises out of petitioner’s allegations that two

members of the Virginia Polytechnic Institute and State Uni-

versity football team repeatedly raped her in a dormitory

' In conformity with Supreme Court Rule 37, the amici have obtained

the consent of the parties to the filing of this brief and letters of consent

have been filed with the Clerk. The amici also state that counsel for a party

did not author this brief in whole or in part; and no person or entities other

than amici, their members, and counsel made a monetary contribution to

the preparation and submission of this brief.

2

room shortly after making her acquaintance in September

1994. Petitioner’s allegations are sharply contested but have

been treated as true for the purpose of the motion to dismiss.

Respondent Antonio Morrison acknowledged that a single

sexual encounter had occurred but claimed it was consensual.

Respondent James Crawford denied that he had had any

sexual relations with the petitioner. It is undisputed that the

petitioner neither preserved evidence of the alleged rapes nor

reported them to the police or to university authorities at, or

shortly after, the time they were alleged to have occurred.

Five months after the alleged rapes took place, petitioner

claims that she identified the two respondents as her

assailants. Two months later she filed a complaint with the

university under the school’s student code of conduct.

The university’s internal system exonerated Crawford,

but found that Morrison violated the university’s code of

conduct. Morrison was to be suspended for one year, but he

appealed that decision on the ground that the university's

internal procedures had not afforded him the process due

under the Fourteenth Amendment to the United States Consti-

tution. The university set aside the original findings and

ordered a second hearing. The second hearing found Morrison

guilty of using abusive language in violation of the student

code and recommended a suspension from school. This sanc-

tion was overturned by the university Provost, Peggy Mes-

zaros, in August 1995, on the ground that it was excessive

relative to other similar cases, not specified. Morrison

returned to school on athletic scholarship in the fall of 1995.

His conduct was later investigated by the Virginia State

Police for two months, who presented their findings to a

grand jury, which refused to indict him.

In December 1995, plaintiff brought suit in federal dis-

trict court. Her complaint alleged that VPI had permitted the

creation of a sexually hostile environment in violation of Title

IX of the Civil Rights Act of 1964, and that Morrison and

Crawford had violated her rights under the Violence Against

Women Act (VAWA), §13981(b), to be free of gender-based

crimes of violence. Plaintiff's Title IX claim was dismissed in

the District Court; that portion of the court’s decision was

3

vacated by a panel of the Fourth Circuit and is not at issue

here. 935 F. Supp. 779 (W.D. Va. 1996), aff'd in part, 132

F.3d 949 (4th Cir. 1997). Petitioner’s VAWA claim against

Morrison and Crawford was also dismissed by the District

Court on the ground that Congress lacked the power under

either the Commerce Clause or section 5 of the Fourteenth

Amendment to create the private right of action provided for

in VAWA. A Fourth Circuit panel initially reversed that deci-

sion, holding that Congress did have authority under the

Commerce Clause to enact VAWA. 132 F.3d 949 (4th Cir.

1997). But this panel’s decision was set aside and subse-

quently overturned by the Fourth Circuit en banc, 169 F.3d

820 (4th Cir. 1999), which held that Congress lacked the

power to pass VAWA under either the Commerce Clause or

the Fourteenth Amendment. The petition for certiorari to

review the case under both heads of federal power was

granted by this Court.

SUMMARY OF ARGUMENT

The sole question in this case is whether Congress has

the power to create a private cause of action against a person

“who commits a crime of violence motivated by gender,” for

which a court may award “compensatory and punitive dam-

ages, injunctive and declaratory relief.” Petitioner Brzonkala

claims that two separate provisions of the United States Con-

stitution — the Commerce Clause and section 5 of the Four-

teenth Amendment —- confer that power on Congress. Both

claims are manifestly mistaken.

The Constitution establishes a government of delegated,

enumerated, and thus limited powers. Powers not delegated to

the Federal Government are reserved to the states or to the

people. Moreover, as James Madison wrote in Federalist 45,

the powers of the Federal Government are “few and defined.”

In particular, there is no general federal police power; that

power was reserved to the states. Thus, a fair interpretation of

any particular clause in the Constitution must be consistent

with that larger design. An interpretation that amounts to a

4

grant of plenary power to any branch of the Federal Govern-

ment cannot be right.

Under the Commerce Clause, Congress has power “to

regulate Commerce with foreign Nations, and among the

several States, and with the Indian tribes.” In its application

to domestic affairs, the clause was written primarily to ensure

the free flow of goods and services among the states and to

preclude states from interfering with that commerce. Given

that understanding, it has never been disputed that Congress

has the power to regulate both the shipment of goods and

services in interstate commerce and the instrumentalities of

interstate commerce — that is, transportation and communica-

tion among the several states. See Gibbons v. Ogden, 22 U.S.

(9 Wheat.) | (1824). By the same token, Gibbons explicitly

recognized that Congress could regulate neither local com-

merce (i.e., trade) nor manufacturing, agriculture, or mining,

even of goods, foodstuffs, or raw materials intended for

shipment in foreign or interstate commerce. United States v.

E.C. Knight Co., 156 U.S. 1 (1895). That interpretation of the

Commerce Clause was consistent with our system of dual

sovereignty. It enabled both Congress and the states to regu-

late within their respective, authorized spheres while limiting

both to those spheres.

With the jurisprudential revolution of the New Deal,

however, the power of Congress expanded significantly as the

Commerce Clause was read to authorize regulation of even

local activities, provided they had a “substantial effect” on

interstate commerce. Thus, in Wickard v. Filburn, 317 U.S.

111 (1942), this Court upheld a federal statute regulating the

production of wheat, even though the wheat never entered the

market, because wheat produced in excess of the limits set by

the statute was wheat that would not be purchased on the

market, the Court said. Notwithstanding that expansion of

Congress's power, however, this Court held in United States

v. Lopez, 514 U.S. 549 (1995), that Wickard did not create an

all-inclusive federal police power. Accordingly, it found that

Congress did not have power under the Commerce Clause to

enact the Gun-Free School Zones Act of 1990, 18 U.S.C.

§922(q), which forbid any person from knowingly possessing

—

5

a firearm withi1 1000 feet of school premises. And it did so

on the ground that the activity “is in no sense an economic

activity that might, through repetition elsewhere, substantially

affect any sort of interstate commerce.” Lopez, 514 U.S. at

567.

Lopez governs here. The alleged sexual assault on peti-

tioner “is, in no sense, an economic activity that might,

through repetition elsewhere, substantially affect any sort of

interstate commerce.” /d. Nor is VAWA saved by the carefully

scripted congressional findings that recount the admitted hor-

rors of sexual assault while failing to explain how those actions

fall under Congress’s power to regulate “Commerce .. .

among the several States.” Lopez rejected similar conclusory

findings as grounds for federal power. /d. at 564-68. If this

section of VAWA is upheld, Congress’s regulatory power is

effectively plenary and the principle of enumerated powers,

which is the foundation of federalism, is a dead letter.

Yet the effort to find authority for VAWA’s right of action

against private parties under section 5 of the Fourteenth

Amendment fares no better. Section 5 grants Congress the

power “to enforce, by appropriate legislation, the provisions

of this Article.” But those provisions — the substantive guar-

antees of the Fourteenth Amendment - apply only against the

States, not against private citizens. Protecting people ard

property against private violence is the traditional function of

state police power. The Fourteenth Amendment authorizes

courts and Congress to take measures against civil rights

violations by states. By no stretch of the imagination were

Morrison or Crawford acting as either state officials or under

color of state law when they committed their alleged assaults.

In no way, therefore, does their conduct trigger Congress’s

power under section 5. Nor is federal jurisdiction saved by

any “finding” of Congress, or strategic admission by state

officials, that all state court personnel are subject to gender

bias and discrimination in administering state law. Such

unproven blanket assertions amount to conclusory presump-

tions, invoked to escape the limitations that section 5 places

on Congress’s power. And their truth is clearly belied by

VAWA’s grant of concurrent jurisdiction to state courts.

6

ARGUMENT

I. CONSTITUTIONAL STRUCTURE, TEXT, AND HIS-

TORY ALL SHOW THAT CONGRESS’S POWER

UNDER THE COMMERCE CLAUSE IS LIMITED.

The Constitution’s Commerce Clause provides that Con-

gress shall have the power “to regulate Commerce with for-

eign Nations, and among the several States, and with the

Indian Tribes.” In its most recent examination of the clause,

United States v. Lopez, 514 U.S. 549 (1995), this Court did

not endorse, as petitioner Brzonkala suggests, a “pragmatic”

approach to interpreting the Commerce Clause. Brief of Peti-

tioner Brzonkala (“Pet. Brief”) at 22. Quite the opposite,

Chief Justice Rehnquist’s opinion for the Court, which is

rarely quoted or cited in either Brzonkala’s brief or the brief

for the United States, contains a comprehensive and princi-

pled review of this Court’s Commerce Clause jurisprudence.

Chief Justice Rehnquist’s opinion for the Court begins by

laying down the fundamental premise of the Constitution:

“We start with first principles. The Constitution creates a

Federal Government of enumerated powers.” Lopez, 514 U.S.

at 552. It then quotes Madison's famous words from Federal-

ist 45: “[t]he powers delegated by the proposed Constitution

to the federal government are few and defined. Those which

are to remain in the State governments are numerous and

indefinite.” And it concludes by observing that to uphold the

government's expansive reading of its power, the Court

“would have to pile inference upon inference in a manner that

would bid fair to convert congressional authority under the

Commerce Clause to a general police power of the sort

retained by the States.” Lopez, 514 U.S. at 567-68.

Consistent with that framework, rooted in first principles,

the Court identified three possible heads of federal power

under the Commerce Clause. The first of these gives Congress

the power “to regulate the use of the channels of interstate

commerce.” /d. at 558. The second gives Congress the power

“to regulate and protect the instrumentalities of interstate

commerce, or persons or things in interstate commerce, even

though the threat may come only from intrastate activity.” /d.

7

Finally, and this is the only category relevant here, Congress

has the power “to regulate those activities having a substan-

tial relation to interstate commerce.” /d. at 558-59. That third

category, however, was not meant to afford Congress “an

excuse” to regulate any activity that had any effect on com-

merce, however trivial, for in the next breath the Court said

that “the proper test requires an analysis of whether the

regulated activity ‘substantially affects’ interstate com-

merce.” In his concurrence, Justice Kennedy drew the ulti-

mate conclusion: “As the Chief Justice explains, unlike the

earlier cases to come before the Court here neither the actors

nor their conduct has a commercial character, and neither the

purposes nor the design of the statute has an evident commer-

cial nexus.” /d. at 580.

Those conclusions are fully warranted by the text of the

Commerce Clause, which on its face confers on Congress the

power to regulate that portion of commerce — that is, trade —

that takes place with foreign nations, among the several

states, and with the Indian tribes. As a matter of both text and

ordinary language, commerce was understood as trade — as

distinct from manufacturing, agriculture, and mining. Thus,

Justice Thomas noted in his concurrence in Lopez that “[a]t

the time the original Constitution was ratified, ‘commerce’

consisted of selling, buying, and bartering, as well as trans-

porting for these purposes. . . . As one would expect, the term

‘commerce’ was used in contradistinction to productive activ-

ities such as manufacturing and agriculture.” /d. at 585-86.

Indeed, the distinction between commerce and other activities

is driven home if one tries to replace the term “commerce”

with the terms “manufacturing” and “agriculture” in the Com-

merce Clause: “Congress shall have power to regulate manu-

facturing and agriculture with foreign Nations, and among the

several States, and with the Indian tribes.” That construction

makes no more textual or thematic sense today than it did in

1787.

The Court’s conclusions in Lopez are congruent with

other parts of the Constitution as well. Thus, before the Civil

War, it would have been inconceivable for Congress to invoke

the Commerce Clause to regulate the use of slaves in the

Southern States, even though the Constitution explicitly

empowered Congress to prohibit the “Migration or Importa-

tion” of slaves after 1808. U.S. Const. Art. I, §9. Likewise,

“commerce” is used as a synonym for trade in Art. I, §9,

which states that “No Preference shall be given by any Regu-

lation to Any Commerce or Revenue to the Ports of one State

over those of another.” Consistent with that usage, Article I

maintains a strong division between the manufacture that

precedes trade and the commerce that flows from it.

The structural limitations on Congress’s power were

imposed to guard the prerogatives of the states as part of a

complex federal system. And federalism, in turn, “was

adopted by the Framers to ensure protection of our fundamen-

tal liberties.” Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)

(cited in Lopez). Those limitations were brought home with

great force in Chief Justice Marshall’s opinion in Gibbons v.

Ogden, 22 U.S. (9 Wheat.) | (1824), where Marshall explic-

itly rejected any canon of “strict construction” that would

“cripple the government and render it unequal to the object

for which it is declared to be instituted. .. . ” /d. at 188. It is

noteworthy, given that thoroughly modern canon of construc-

tion, that Marshall held that the constitutional objectives of

the Commerce Clause, within our grand constitutional

scheme, were fully achieved even when the commerce power

was “restricted to that commerce which concerns more States

than one.” /d. at 194 (emphasis added).2 Thus, Marshall’s

reading explicitly excluded “the completely interior traffic of

a State.” Jd. Yet it also proved broad and flexible enough to

allow Congress to regulate instrumentalities of interstate

commerce, such as the railroad and the telephone, which were

neither known nor in use when the Constitution was adopted.

Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 1, 19

2 Users of this passage often excise the word “restricted” and replace

it with “extended.” See Laurence Tribe, American Constitutional Law 232

(1987); Stern, The Commerce Clause and the National Economy

1933-1946, 59 Harv. L. Rev. 645, 648 (using “comprehended” (1946). The

full passage, with “restricted,” is quoted in the decision of Chief Justice

Rehnquist. Lopez, 514 U.S. at 553.

9

(1876). At the same time, the Commerce Clause did not

authorize Congress to enact any inspection laws, Marshall

held, because such laws “act upon the subject before it

becomes an article of foreign commerce, or of commerce

among the States, and prepare it for that purpose.” Gibbons,

22 U.S. at 203.

Marshall’s basic understanding governed all subsequent

Supreme Court decisions until 1937. Thus, Veazie v. Moor, 55

U.S. 568 (1853), sustained a state-created steamboat monop-

oly against a Commerce Clause challenge because the monop-

oly operated only in commerce internal to the state. Likewise,

Kidd v. Pearson, 128 U.S. 1, 20 (1888), held that the Com-

merce Clause did not prevent a state from regulating the local

manufacture of intoxicating liquors intended for export to

other states. And United States v. E.C. Knight Co., 156 U.S. 1

(1895), reached back to Gibbons when Chief Justice Fuller

wrote, “Commerce succeeds to manufacture, and is not a part

of it,” id. at 12, then insisted on “the independence of the

commercial power and of the police power.” /d. at 13.

That balanced view of the commerce power informed the

passage of the Interstate Commerce Act of 1887, ch. 104, 24

Stat. 379 (1887), which incorporated a specific proviso that

precluded its application “to the transportation of passengers

or property . . . wholly within one State.” /d. §3. In 1914,

however, the constitutional line was overrun with respect “to

intrastate carriers as instruments of interstate commerce.”

Houston E. & W. Texas Ry. Co. v. United States (“The Shreve-

port Rate Case”), 234 U.S. 342, 351 (1914). In that case this

Court sustained the power of Congress to regulate intrastate

service that operated in direct competition with interstate

service. Nonetheless, the Shreveport Rate Case did nothing to

remove E.C. Knight’s constitutional prohibition against the

federal regulation of all forms of production.

Not until the New Deal and the watershed decision in

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), did

the Court construe the commerce power as reaching local

manufacturing — there, to uphold the federal regulation of

labor relations in local manufacturing under the Wagner Act,

ch. 372, 49 Stat. 449 (1935). Then, in Wickard v. Filburn, 317

10

U.S. 111 (1942), “which is perhaps the most far reaching

example of Commerce Clause authority over intrastate activ-

ity,” Lopez, 514 U.S. at 560, this Court upheld the power of

the Secretary of Agriculture to limit the production of wheat

on the very farm on which it was consumed. According to

Justice Jackson, “[e]ven 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.’ ”

Wickard, 317 U.S. at 125 (emphasis added). In coming to that

conclusion, Justice Jackson explicitly applied the Shreveport

Rate Case while ignoring its key qualification: the commerce

power reached “intrastate carriers as instruments of interstate

commerce.” Wickard, 317 U.S. at 123.

Given the New Deal Court’s expansive reading of the

Commerce Clause, it is important to reassert the soundness,

as a matter of first principle, of the Court’s interpretation of

the clause prior to Jones & Laughlin and Wickard. In Lopez,

Justice Kennedy noted that, “in contrast to the prevailing

skepticism that surrounds our ability to give meaning to the

explicit text of the Commerce Clause, there is widespread

acceptance of our authority to enforce the dormant Commerce

Clause, which we have but inferred from the constitutional

structure as a limitation on the power of the states.” Lopez,

514 U.S. at 579 (Kennedy, J., concurring). Yet that inference,

from constitutional structure, is not only sound but instructive

in interpreting the affirmative commerce power, which allows

Congress to create a national free trade zone, insulated from

the petty restrictions and recriminations of the various states.

As Justice Jackson wrote seven years after Wickard: “This

Court has not only recognized this disability of the state to

isolate its own economy as a basis for striking down parochial

legislative policies designed to do so, but it has recognized

the incapacity of the state to protect its own inhabitants from

competition as a reason for sustaining particular exercises of

the Commerce Power of Congress to reach matters in which

the states were so disabled.” H.P. Hood & Sons v. Du Mond,

———

336 U.S. 525, 538 (1949). There the Court disallowed New

York’s refusal to issue a license to a Massachusetts milk

distributor, seeing protectionism in New York’s claims about

“destructive competition in a market already adequately

served.” /d. at 528.

Thus, the great objects of the Constitution are best served

when Congress is understood as having a limited power to

regulate the network through which commerce courses among

the several states, but is understood also as precluded from

regulating the internal productive activities that send local

goods and services into that network. The great danger, mani-

fest well before Gibbons, was that each state, acting out of

parochial interests, would hamper or sever the vital intercon-

nections within a single national economic market by impos-

ing crippling restrictions on the shipment of goods,

information, and services across state lines. Pursuant to the

commerce power, Congress could regulate commerce to over-

come that danger.*

But most manufacturing, mining, and agriculture are not

network industries. Thus, a principled refusal to extend the

commerce power beyond its structural, textual, and historical

limits helps preserve competition between firms in different

states, firms that gain access to national markets over a

national network guaranteed by the federal government. In

that regard, it is often stated that the ever-greater complexity

today of social and economic affairs requires a concomitant

expansion of the federal commerce power so that its com-

mands can be “translated” from yesterday's horse-and-buggy

era to today’s Internet economy. See, e.g., Lessig, Translating

Federalism: United States v. Lopez, 1995 Sup. Cr. Rev., 125,

130 (1995). But that argument gets the economic dynamics

precisely backwards. Better and more rapid modes of trans-

portation and communication bring the goods and services of

3 Not all such regulation has been cost free, to be sure: witness the

creation of the federal monopolies and cartels that eventually arose under

the Interstate Commerce Act. See Wisconsin Railroad Commission yv.

Chicago, Burlington & Quincy Railroad, 257 U.S. 563 (1922).

12

one state into greater competition with those of all other

states. That increased competition among the states implies an

absence of barriers and hence a reduced need for federal

policing of the network factors. One might deviate from that

conclusion only from a misguided belief that federally-sup-

ported monopolies in manufacturing, labor, or agriculture

somehow work to the national good, a conclusion that flies in

the face of the antitrust laws and this Court’s own dormant

Commerce Clause and Due Process Clause jurisprudence.

See, e.g., American Trucking Ass'ns v. Scheiner, 483 U.S. 266

(1987) (application to state taxation of interstate commerce).

At this point in our history, it may be too difficult for this

Court to extricate itself from its post-1937 Commerce Clause

jurisprudence. See Lopez, 514 U.S. at 573-74 (Kennedy, J.

concurring.) At the same time, the uncertain constitutional

foundations of that jurisprudence strongly support this

Court's decision in Lopez to not extend Congress's commerce

power beyond the economic and commercial issues that were

the target in Wickard.

Both petitioner Brzonkala and the government ignore

those basic constitutional principles — as if they did not have

to be addressed. Indeed, in analyzing the Commerce Clause,

neither of their briefs seems able even to utter the phrase

“enumerated powers.” Neither tries to explain what activities

lie outside the commerce power. Instead, they veer off into

diversions. Thus, petitioner Brzonkala claims that the Neces-

sary and Proper Clause, Art. I, §9, justifies an expansive

reading of the commerce power. Pet. Brief at 20, 36. Yet

petitioner never stops to explain why VAWA is either neces-

sary or proper to regulate any activity that has a substantial

economic effect on Congress, given the violence it does to our

basic constitutional structure of enumerated powers. The Nec-

essary and Proper Clause gives Congress the power only “to

make all laws which shall be necessary and proper for carry-

ing into Execution the foregoing powers.” U.S. Const. Art. I,

§8, cl. 18. It ensures that Congress shall have the power to

adopt the means that are necessary and proper to achieve its

ends. In no sense does it authorize an expansion of the set of

ends or the repeal of the doctrine of enumerated powers. The

13

clause adds nothing to the scope of commerce, as indeed

Chief Justice Marshall explicitly held in Gibbons, 22 U.S. at

187.

Petitioner Brzonkala next claims that the commerce

power should receive an especially broad construction in civil

rights cases. Pet. Brief at 32-36. Yet neither the text of the

Commerce Clause nor this Court’s decision in Lopez contain

any such notion. In fact, Lopez cites the key civil rights cases

(e.g., Heart of Atlanta Motel v. United States, 379 U.S. 241

(1964), and Maryland v. Wirtz, 392 U.S. 183 (1968)) in the

same paragraphs in which it cites the traditional agricultural

regulation cases (e.g., United States v. Darby, 312 U.S. 100

(1941), and Wickard). See Lopez, 514 U.S. at 557-78. Then,

for analytical purposes, the Court groups those cases together

as well: “[W]e have upheld a wide variety of congressional

Acts regulating intrastate economic activity where we have

concluded that the activity substantially affected interstate

commerce. Examples include the regulation of intrastate coal

mining, intrastate extortionate credit transactions, restaurants

utilizing substantial interstate supplies, inns and hotels cater-

ing to interstate guests, and production and consumption of

home-grown wheat.” /d. at 559-60 (citations omitted). The

civil rights cases are included in the list, along with cases

concerning agricultural regulation, because both kinds of

cases involve “economic activity.” Id. at 559 (emphasis

added). As in Lopez, by no stretch of language or imagination

can the activity at issue in VAWA be characterized as “eco-

nomic.”

Finally, petitioner Brzonkala also falsely brands the deci-

sion of the Fourth Circuit en banc as having created a “for-

malistic, bright line” rule, Pet. Brief at 38, even though Judge

Luttig’s exhaustive opinion frequently quotes and scru-

pulously applies this Court’s precise language in Lopez and

fully recognizes the inevitable ambiguity that lies in the

interpretation of any of the great clauses of the Constitution.

169 F.3d 820 (4th Cir. 1999). Yet not once does the brief of

either petitioner Brzonkala or the government seek to respond

to the Fourth Circuit’s specific reading of Lopez.

14

Il. THE VIOLENCE AGAINST WOMEN ACT IS NOT

AUTHORIZED UNDER THE COMMERCE CLAUSE

AS INTERPRETED IN UNITED STATES V. LOPEZ.

A. Lopez Confines Congress’s Power Under The

Commerce Clause To Matters That Have A Sub-

stantial Effect On Economic Activity.

This Court’s opinion in Lopez sets the framework for

analyzing any claim that Congress has the power to create a

private right of action for gender-based violence under

VAWA. To place VAWA in context, it is useful to review just

why this Court found that section 922(q) of the Gun-Free

School Zones Act (GFSZA) did not fall within Congress’s

power under the Commerce Clause. Most critically, the Court

distinguished Wickard from Lopez by noting that Wickard

“involved economic activity in a way that the possession of a

gun in a school zone does not.” Lopez, 514 U.S. at 560. It

then quoted those passages in Wickard that made it clear to

the Wickard Court that the level of home production and

consumption of wheat could influence the volume of wheat

shipped in interstate commerce. Wickard, 317 U.S. at 128,

quoted in Lopez, at 560-561. And the Lopez Court concluded

its discussion by noting that “Section 922(q) is a criminal

Statute that by its terms has nothing to do with ‘commerce’ or

any sort of economic enterprise, however broadly one might

define those terms.” Lopez, 514 U.S. at 561. Thus understood,

the distinction between “affects commerce” and “substantially

affects commerce” is not merely an elusive matter of degree.

Rather, this Court intended to create a distinction in kind

between those activities, done locally, that are subject to

Commerce Clause regulation and those that are not.

The force of that analysis is made unmistakable by the

Court’s explicit rejection of Justice Breyer’s effort to develop

a network of causation that links the use of guns to the threats

that guns pose to interstate commerce. Justice Breyer sought

to demonstrate that guns cause violence, that violence dis-

rupts education, and that uneducated students cannot partici-

pate in interstate commerce. See Lopez, 514 U.S. at 623-24

(Breyer, J., dissenting), criticized in Lopez, 514 U.S. at

ll a - =

15

564-65 (Rehnquist, C.J.). The key point is this: the Court did

not reject that argument because of a dispute over some

abstract theory of causation; rather, it rejected the argument

because it made it impossible for Justice Breyer “to identify

any activity that the States may regulate but Congress may

not.” Jd. at 564. In principle and in fact, no area of education

or child-rearing or anything else could lie beyond the power

of the Federal Government. Even when this Court moved

from E.C. Knight to Wickard it held fast to the first principle

— that the Commerce Clause operated as part of a system of

divided and enumerated powers. Chief Justice Rehnquist was

thus driven to the inescapable conclusion: “To uphold the

Government's contentions here, we would have to pile infer-

ence upon inference in a manner that would bid fair to convert

congressional authority under the Commerce Clause to a

general police power of the sort retained by the States... .

This we are unwilling to do.” /d. at 567-568.

That analysis puts into perspective two contentions that

could easily lead to confusion in the analysis of this case. The

first is that the rational basis test operates as an “open

sesame” to Congress. Pet. Brief at 26-27. The second is that

the GFSZA would have been upheld but for Congress’s fail-

ure to supply a detailed set of findings to explain why its

legislation had a substantial effect on commerce among the

several states. Both contentions are wrong.

B. The Rational Basis Test Does Not Save VAWA

Under The Commerce Clause.

The petitioner argues that the constitutionality of VAWA

is preordained under the rational basis test. “As Lopez reaf-

firmed, intrastate activity is within the Commerce Power if a

‘rational basis’ exists for Congress to conclude ‘that a regu-

lated activity sufficiently affect[s] interstate commerce.’ ”

Lopez, 514 U.S. at 557; Pet. Brief at 26. That contention has

often proven true when the Court has refused, under the Due

Process Clause, to strike down legislation that restricts the

economic liberties of ordinary individuals to engage in certain

occupations or trade. After the New Deal, especially, “the

16

Court declared that it would sustain regulation in the socio-

economic sphere if any state of facts either known or reason-

ably inferable afforded support of the legislative judgment.

Even this limited scrutiny soon gave way to virtually com-

plete judicial abdication.” Laurence Tribe, American Consti-

tutional Law 582 (1987) (citing Ferguson v. Skrupa, 372 U.S.

726 (1963), as a case in which the legislation was upheld “for

virtually no substantive reason at all.”). The implicit, if mis-

taken, assumption behind such cases is that the political

process can protect economic players from potential abuse by

the democratic process.

Whatever the contours of the rational basis test as

applied to economic liberties, that test takes on a different hue

and coloration in Lopez. In that context, this Court has made

it crystal clear that respecting constitutional restrictions on

federal power is vital to preserving the original constitutional

design. Justice Kennedy writes: “The statute before us

{[GFSZA] upsets the federal balance to a degree that renders it

an unconstitutional assertion of the Commerce Power, and our

intervention is required.” Lopez, 514 U.S. at 580. Thus,

although some deference is due Congress, if that were tanta-

mount to treating Congress as the sole judge of the limits on

its constitutional authority, no judicial review would be

needed or even possible, and the principle of enumerated

powers would amount to an empty promise. Fortunately, the

doctrine of deference has not yet rendered judicial review

superfluous.

When Congress can show that legislation is directed to

local activities that have a substantial economic effect on

interstate commerce, then this Court, after Wickard, will not

examine that judgment to see whether the legislation pro-

motes competition or monopoly. It will leave that determina-

tion to Congress. But it will not allow Congress, under its

commerce power, to legislate over activities that have no

substantial effect on the economic structure of product or

service markets, or the price and quantity of goods that are

sold in interstate commerce. Deference only to the wisdom of

Congress's action; no deference, and certainly no complete

deference, to the field of operation of any federal statute.

17

Lopez embraces a rational basis test, but it is a rational basis

test with a kicker. The mere fact that this Court struck down

the GFSZA is proof that the rational basis test, as applied to

Congress's actions under the Commerce Clause, does not

operate as a rubber stamp or an automatic validation of

Congress's power. Both history and prudence teach that the

risk of congressional aggrandizement is too great to allow for

the application of a toothless rational basis test.

C. The Gun-Free School Zones Act, As Amended, Is

Not Saved By Congress’s Ostensible Legislative

Findings.

When Congress first enacted the Gun-Free School Zones

Act in 1990, it neglected even to cite its constitutional author-

ity for doing so, much less make findings aimed at showing

that the activity regulated — assuming it was regulating under

the Commerce Clause — had a substantial effect on interstate

commerce. Those omissions have led to misleading and incor-

rect assertions that the outcome in Lopez would have been

different had Congress supplied a jurisdictional statement and

findings as to why the GFSZA fell under the commerce

power. Lopez, 514 U.S. at 561-52; Pet. Brief at 27. To be sure,

this Court in Lopez took note of the place and purpose of

legislative findings: “[A]s part of our independent evaluation

of constitutionality under the Commerce Clause we of course

consider legislative findings, and indeed even congressional

committee findings, regarding effect on interstate commerce.”

Lopez, 514 U.S. at 562. But once again, that “independent

evaluation” must be properly made. This Court will “con-

sider” those legislative findings, but will not act as a rubber

stamp. The mere recitation of findings hardly suffices to pass

constitutional muster. Such findings could have led to a dif-

ferent outcome in Lopez only if they had shown that the

carrying of guns within 1000 feet of a scnool had a substantial

effect on interstate commerce.

The mischievous use of legislative findings was revealed

when Congress amended the Gun-Free School Zones Act, 18

18

U.S.C. §922(q), to add certain findings that supposedly dem-

onstrate an interstate commerce connection. The amended

GFSZA contained a list of nine findings that purport to show

the effect that guns in school zones have on interstate com-

merce. /d. But those findings establish the truth, if they do,

only of matters that have already been found irrelevant in

Lopez. Indeed, they simply regurgitate, virtually point by

point, the constitutionally insufficient factual connections

mentioned in Justice Breyer’s dissent about the ostensible

causal connection between guns and interstate commerce.

Thus, finding (A) notes that “crime, particularly crime

involving drugs and guns, is a pervasive, nationwide prob-

lem.” That point was conceded in Lopez, even without speci-

fic findings. Yet that truism fails to explain how Congress has

power, under the Commerce Clause, to limit the use of guns

within 1000 feet of a school. By the logic of finding (A), any

prohibition on the use of guns anywhere comes within the

commerce power, a proposition that Lopez plainly rejects.

Finding (B) then states that “crime at the local level is

exacerbated by the interstate movement of drugs, guns, and

criminal[s}].” True enough, but Lopez already refused to find

that Congress could legislate under the commerce power

solely because crime spreads the increased costs of insurance

throughout the population and reduces the willingness to

travel. Finding (C) states that “firearms and ammunition move

easily in interstate commerce and have been found in increas-

ing numbers in and around schools.” Finding (D), working in

tandem with finding (C), notes that component parts, ammu-

nition, and the raw materials from which guns are made also

move in interstate commerce. But in both cases the question

is not whether Congress has the power to stop the shipment of

guns in interstate commerce but whether the GFSZA regulates

activities that have a substantial effect on interstate com-

merce. Finding (E) observes that “ordinary citizens and for-

eign visitors may fear to travel to or through certain parts of

the country due to concern about violent crime and gun

violence, and parents may decline to send their child to school

for the same reason.” Once again, that truism is no more true

of crime in school zones than of crime anywhere else. Finding

19

(F) notes that “the occurrence of violent crime in school

zones has resulted in a decline in the quality of education in

our country.” True, but again irrelevant. Finding (G) notes

that “this decline in the quality of education has an adverse

impact on interstate commerce and the foreign commerce of

the United States,” which once again restates the Breyer

dissent. Lopez, 514 U.S. at 601 (Breyer, J., dissenting).

Finding (H) raises the specter of the failure of state and

local coordination: “States, localities, and school systems find

it almost impossible to handle gun-related crime by them-

selves; even States, localities, and school systems that have

made strong efforts to prevent, detect, and punish gun-related

crime find their efforts unavailing due in part to the failure or

inability of other States or localities to take strong measures.”

Initially, it seems odd to say that state and local efforts are

“unavailing” when children are far safer at school than any-

where else. See Schools the Safest Place for Kids (NEA

Focus, Aug. 12, 1998); Donohue, Schiraldi, and Ziedenberg,

School House Hype: School shootings and the real risks kids

face in America (Justice Policy Institute 1999) (documenting

that the number of children killed by gun violence at schools

is about half the number of Americans killed annually by

lightning). And the law of Texas, the state involved in Lopez,

already imposed heavy penalties for those convicted of carry-

ing guns near schools. The states are not caught in some

hopeless “prisoner’s dilemma,” such that no state will impose

restrictions on guns near schools for fear that others might not

follow. As long as the control of violence makes the citizens

of its own state better off, then each state has an incentive to

curb that violence, wholly apart from what any other state

might do. To find here some deep failure of federalism is to

convert the entire criminal code into a set of federal offenses.

That leaves only finding (I), that “Congress has power,

under the interstate commerce clause and other provisions of

the Constitution, to enact measures to ensure the integrity and

safety of the Nation’s schools by enactment of this subsec-

tion.” That “finding” is patently circular, of course. It

amounts to saying that GFSZA is constitutional because Con-

gress says it is. Lopez stands for nothing if congressional

20

pretensions like those are allowed to stand. Lopez posed a

serious substantive standard that requires Congress to iden-

tify, as in Wickard, the interstate commerce that will be

substantially affected by regulation of the activity at issue.

Nothing in those findings addresses that question. Congress

cannot expand its power simply by asserting the truth of

constitutionally irrelevant propositions. This Court should

“consider” such canned findings and then reject them as

worthless for deciding the issue at hand.

D. Congress’s Findings Do Not Provide A Rational

Basis To Think That The Private Right of Action

Under VAWA Falls Within The Scope Of Its Com-

merce Power.

The reasons that doom the GFSZA under Lopez neces-

sarily doom the private right of action of VAWA. As in Lopez,

the private action provisions of VAWA do nothing to unclog

the channels or instrumentalities of interstate commerce.

Thus, VAWA is authorized under the commerce power only if

gender-based violence against women substantially effects

interstate commerce in ways that gun possession near schools

does not. Once again, Congress has resorted to legislative

legerdemain in an effort to establish that critical connection.

Thus, section 302 contains these findings:

(5) gender-motivated violence has a substantial adverse

effect on interstate commerce, by deterring potential victims

from traveling interstate, from engaging in employment in

interstate business, and from transacting with business, and in

places involved, in interstate commerce;

(6) gender-motivated violence has a substantial adverse

effect on interstate commerce, by diminishing national pro-

ductivity, increasing medical and other costs, and decreasing

the supply of and demand for interstate products.

Such “boilerplate” findings do nothing whatever to allay

the Lopez fears of an unlimited expansion of Congress’s

power. Initially, they do nothing more than restate the obvious

fact that gender-based violence has a substantial adverse

effect on all human activities: after all, local activities are

21

affected at least as much as national ones. Nor are the eco-

nomic implications of those effects at all clear. For all anyone

knows, gender-based violence could increase interstate com-

merce by encouraging women to move elsewhere, to increase

safety purchases, insurance protection, and the like.

No matter: on petitioner Brzonkala’s and the govern-

ment’s view, Congress need only find that gender-based vio-

lence either deters people from or induces them toward

interstate commerce. Such findings represent no serious effort

to understand the relationship between violence and anything.

In fact, under the implicit methodology, it is impossible to

falsify the claim that any given human activity affects inter-

state commerce. Thus, in principle, all human activity is

subject to federal regulation under the Commerce Clause. The

Framers need not have enumerated Congress's other powers.

Congress can regulate anything it wishes to regulate under

this sole power.

Stated otherwise, Congress’s purported findings do abso-

lutely nothing to explain the impact of gender-based violence

on the price or quantity of any specific product or service in

the manner referred to in Wickard and now required in Lopez.

VAWA’s findings simply import the words “substantial

adverse effect” in a transparent effort to cloak VAWA in

Lopez garments. At no point do those findings address the key

concern of Lopez, namely, to identify some activities that lie

outside the scope of Congress’s commerce power. Logically,

it cannot be disputed that gender-motivated violence — vio-

lence against women, in particular — forms a proper subset of

all forms of violence. Therefore, if gender-based violence

directed against women alone, or against both women and

men, has a substantial adverse (or positive) effect on inter-

state commerce, then it surely follows that all forms of

violence, wholly apart from gender-based motivation, must

have a still greater effect on interstate commerce, positive or

negative. Thus, nothing prevents the complete federalization

of every nook and cranny of tort and criminal law.

22

Those gaping difficulties in VAWA’s legislative findings

are hardly cured by extensive testimony presented at congres-

sional oversight hearings. Such orchestrated, one-sided exer-

cises are political love-fests that follow the same predictable,

transparent pattern. Individual members of the House and

Senate rise to denounce the impact of violence against women

in their state, then call quickly for federal legislation. See,

e.g., Hearing on the Violence Against Women Act Before the

Subcomm. of Crime and Criminal Justice of the House

Comm. of the Judiciary at 7 (June 30, 1994) (statement of Mr.

Sangmeister) (“No other civilized nation has ever tolerated

this level of violence against women. In this Nation this

Congress can no longer fail to take comprehensive action to

deal with this serious problem.”). Those statements are then

followed by grim statistics about the prevalence of crime, by

testimony from individual women who have worked with

women who have been subject to violent crimes, see, e.g., id.

at 9 (statement of Vicki Coffey, executive director, Chicago

Abused Women Coalition), and by individual women who

have been subjected to crimes of violence. See, e.g., id. at 14

(statement of Pegi Shriver). Evidence of this sort is then cited

uncritically and at great length in the petitioner Brzonkala’s,

the government’s, and numerous amicus briefs. Pet. Brief at

6-13; United States Brief at 3-8 (noting the frequency of rape,

murder, and domestic violence). Yet even here their use of

evidence is curiously selective; not once does either brief

mention that for every two violent victimizations of females,

there are three of males. Craven, Sex Differences in Violent

Victimization (Bureau of Justice Statistics, Sept. 1997) (docu-

menting that in 1994 men experienced almost 6.6 million

violent victimizations while women experienced 5 million).

Not once does either brief refer to the welcome improvement

in overall crime statistics in recent years. See Criminal Vic-

timization 1996 (Bureau of Justice Statistics, Nov. 1997)

(noting that between 1995 and 1996, the violent crime rate

overall decreased about 10%). Not once does either brief seek

to update those studies to address the progress on such mat-

ters in recent years.

23

No one can deny the seriousness of America’s crime

problem at any level, nor the harrowing condition of the

victims of crime, whatever its motivation. But the issue

before this Court is not whether the conduct is heinous or

wrongful, but whether it forms the subject matter of a federal

offense remediable under the Commerce Clause. Here the

cumulative nature of VAWA’s recitations does nothing to

address the specific substantive requirements established in

Lopez. Testimony that shows that victims of violence should

have private federal rights of action also establishes that

Congress could, if it chooses, punish all forms of violence

under federal criminal law. If VAWA passes constitutional

muster, then Congress need only hold preordained hearings

and make uncontested findings about the disruption that all

forms of violence have on the economy in order to pass the

Violence Against People Act (VAPA), calling for both private

rights of action and criminal sanctions against all forms of

violence. In a twinkling, VAPA can federalize the entire

criminal and tort law, given that accidental harms also sub-

stantially affect interstate commerce. If that happens, then the

doctrine of enumerated federal powers, and the division of

powers between the federal and state governments, becomes a

distant memory. VAWA can be sustained only if Lopez is

overruled or ignored.

That tragic result would mean the end of federalism and

the multiplication of sanctions for single actions. All activ-

ities caught under VAWA are both criminal and tortious under

the law of every state. Moreover, it takes little imagination to

foresee that the doctrines of ancillary and pendent jurisdiction

will be quickly invoked to bring large numbers of private

actions in federal court even in the absence of diversity

jurisdiction. Yet neither petitioner Brzonkala nor the govern-

ment explain why or how this massive migration of litigation

from state to federal court improves the administration of

justice. VAWA consciously flouts each and every substantive

requirement for and limit on congressional power under the

Commerce Clause. As long as federalism and enumerated

powers count, then VAWA cannot be sustained under Con-

gress’s commerce power.

24

Ill. THE VIOLENCE AGAINST WOMEN ACT IS NOT

AUTHORIZED UNDER SECTION 5 OF THE

FOURTEENTH AMENDMENT.

A. The Guarantees Of The Fourteenth Amendment

Protect Individuals Only Against State Action.

As an alternative to their Commerce Clause argument,

petitioners assert that VAWA’s private action provisions are a

proper exercise of Congress’s legislative authority under sec-

tion 5 of the Fourteenth Amendment. But that conclusion is

flatly inconsistent with the basic architecture of the amend-

ment. Substantively, section 1 of the amendment offers three

guarantees against state action: “No State shall make or

enforce any law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.” In each case the guarantees

run only against states, not against private parties. Individuals

may bring actions to secure those guarantees against states. In

addition, section 5 authorizes Congress “to enforce” the

amendment’s guarantees through legislation: “The Congress

shall have the power to enforce, by appropriate legislation,

the provisions of this article.” Congress’s power is limited,

therefore, by the substantive provisions to be enforced. None

of those provisions provides guarantees against private

wrongdoing. Thus, Congress has no authority under section 5

to create any cause of action against private parties.

The fatal flaw in the petitioners’ argument arises, then,

from the undeniable fact that the Fourteenth Amendment is

designed to protect against wrongdoing by states, while the

private action provisions of VAWA are designed to protect

against wrongdoing by ordinary individuals. The point is

made clear by the text of section 13981, which creates a cause

of action against “a person (including a person who acts under

color of any statute, ordinance, regulation, custom or usage of

any State).” (emphasis added). By its terms, the unmistakable

inference is that VAWA is meant to apply not only to state

actors but to persons, such as Morrison and Crawford, who do

25

not act under color of state law, no matter how broadly

defined. At that point the Act runs up against an unbroken

line of cases that interpret the Fourteenth Amendment to

mean what it says and say what it means.

The basic point was made unambiguously in the Civil

Rights Cases, 109 U.S. 3 (1883), which struck down the Civil

Rights Act of 1875, enacted under section 5, insofar as the

Act provided that all persons “were entitled to the full and

equal enjoyment of the accommodations, advantages, facili-

ties, and privileges of inns, public conveyances, etc.” The

Court first noted that the Act did not purport to be “corrective

of any constitutional wrong committed by the states.” /d. at

14. It then observed that the Act “applies equally to cases

arising in States which have the justest laws respecting the

personal rights of citizens, and whose authorities are ever

ready to enforce such laws, as to those which arise in States

that may have violated the prohibition of the amendment.” /d.

In concluding, the Court said that “[t}he wrongful act of an

individual, unsupported by any [State] authority is simply a

private wrong, or a crime of that individual; an invasion of

the rights of the injured party, it is true, whether they affect

his person, his property, or his reputation; but if not sanc-

tioned in some way by the State, or not done under State

authority, his rights remain in full force, and may presumably

be vindicated by the laws of the State for redress.” /d. at 17;

see also United States v. Harris, 106 U.S. 629 (1883).

The same understanding of section 5 is found in more

recent cases. Thus, in United States v. Guest, 383 U.S. 745

(1967), Justice Stewart, speaking for this Court, wrote: “It is

a commonplace that rights under the Equal Protection Clause

itself arise only where there has been involvement of the State

or one acting under the color of its authority. /d. at 755; see

also District of Columbia v. Carter, 409 U.S. 418, 423 (1973)

(“the commands of the Fourteenth Amendment are addressed

only to the State or to those acting under color of its author-

ity.”). Most recently, this Court’s decision in City of Boerne v.

Flores, 521 U.S. 507 (1997), struck down the Religious Free-

dom Restoration Act (RFRA), 42 U.S.C. §§2000bb er seq.,

26

insofar as it purported, under section 5, to restore the compel-

ling state interest test of Sherbert v. Verner, 374 U.S. 398

(1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), which

had been rejected in Employment Division v. Smith, 494 U.S.

872 (1990). In so doing, this Court began its opinion with the

premise it had articulated in Lopez, 521 U.S. at 516: “Under

our Constitution, the Federal government is one of enumer-

ated powers.” On that ground, the Court then made the larger

point that applies here also, namely, that Congress's power

under section 5 is limited by the plain text. Thus, although

RFRA, unlike VAWA, was directed against state action, “The

design of the Amendment and the text of §5 are inconsistent

with the suggestion that Congress has the power to decree the

substance of the Fourteenth Amendment's restrictions on the

States. Legislation that alters the meaning of the Free Exer-

cise Clause cannot be said to be enforcing the clause.” /d. at

519. That point applies with equal force here: section 5 does

not empower Congress to enlarge upon or otherwise alter the

provisions it authorizes Congress to enforce through legisla-

tion. Those provisions afford protection against states, not

against private parties. Insofar as VAWA expands Congress's

power beyond constitutional bounds, it must fail.

B. The Congressional Findings Offered In Support

Of VAWA Do Nothing To Fix The Jurisdictional

Gaps In The Petitioners’ Case.

To try to avoid a rudimentary application of the state

action limitation, Congress again published predigested find-

ings and carefully scripted testimony aimed at establishing

the missing element of state action. Thus, VAWA stipulates:

(7) a Federal civil rights action as specified in this

section is necessary to guarantee equal protection of the

laws. ...

(8) victims of gender-motivated violence have a right to

equal protection of laws, including a system of justice that is

unaffected by bias or discrimination and that, at every rele-

vant stage, treats such crimes as seriously as other violent

crimes.

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But those findings fall short of establishing any element

of state action in VAWA cases. At most the findings make

veiled hints that state court systems have been deficient in

guarding against the dangers of gender-based discrimination,

chiefly against women. Even if that point were true, it would

justify at most some action taken against those state officials

whose behavior flouted the applicable constitutional norm.

But the private action section in VAWA does not question or

remove the absolute immunity of judges or prosecutors. Nor

does it establish a system of disciplinary review of judges or

prosecutors to see that they have toed the line in cases of

gender-based violence. Indeed, far from treating state judges

as derelict in their handling of gender-based cases, VAWA

pours further resources into the state civil and criminal law

system. More astonishingly, section 13981(e) provides that

“Federal and State courts shall have concurrent jurisdiction

over actions brought pursuant to this Title,” which hardly

suggests a distrust of the fairness and ability of state court

judges to apply and administer the substantive provisions of

this act.

Worse still, the carefully rehearsed testimony on the

point does not begin to show any of the discrimination in

gender-based crimes that purport to drive the private right of

action under VAWA. None of the testimony distinguishes

between the performance of the courts in different states or

even the differences in the performance of different divisions,

or different judges, within any given state. See, the detailed

dissection of the findings offered by Judge Luttig, App. 151,

Section 3(a). Findings on that point are thus subject to the

same criticism the Court directed toward the 1875 Civil

Rights Act in the Civil Rights Cases: a uniform statutory

provision is defective insofar as it fails to distinguish between

States with the “justest” laws and states whose practices may,

on some occasions, violate the requirements of equal protec-

tion. The law professors’ amicus brief in support of the

petitioners blithely dismisses that point by noting that to have

granted any direct action against state officials for discrimina-

tory underprosecution “would have required state and local

28

officials to defend their actions against charges of sex dis-

crimination in federal court.” Brief of Law Professors at 28.

But the more plausible explanation for that omission is that

Congress and the states have entered into a cozy alliance

whereby the states agree to denounce everyone (and thus no

one) in order to gain additional prosecutorial power in

gender-based civil rights cases. It would create nothing short

of a national scandal to single out by name any judicial

decision or judge for failing to meet the appropriate constitu-

tional standards, and to then document that charge chapter

and verse. But the across-the-board condemnation of all state

court institutions carries no such sting and provokes no such

outrage precisely because everyone knows that its bland dec-

larations have more to do with propping up the untenable

constitutional foundations of the private action provisions of

VAWA than examining with any rigor the professional con-

duct of any state official. Any dispassionate analysis of this

topic would have to examine the constructive actions that

state legislatures and public officials have taken over the

years, and give at least some passing recognition to the major

reductions in crime, including rape and other violent acts

against women, under the current law. See Criminal Victimiz-

ation 1996 (Bureau of Justice Statistics, November 1997)

(noting that between 1995 and 1996, the violent crime rate

overall decreased about 10%); Criminal Victimization 1994

(Bureau of Justice Statistics, April 1996) (documenting that

the crime rate for rape/sexual assault fell 13% between 1993

and 1994 and 31% between 1992 and 1994).

In sum, these findings suffice only if this Court gives

complete deference to legislative findings that utterly fail to

support the creation of this private remedy. In the end, City of

Boerne dooms this approach under section 5 for the same

limited-government reason that Lopez dooms it under the

Commerce Clause. “[A]s broad as the congressional enforce-

ment power is, it is not unlimited.” City of Boerne, 521 U.S.

at 518 (quoting Oregon v. Mitchell, 400 U.S. 112, 128

(1970)). Even under a generous rational basis test, Congress

cannot transmute a private party into an agent of the state;

and it cannot, by mere say-so, declare all state agents derelict

29

in the discharge of their duties without once considering any

contrary evidence.

Petitioner Brzonkala seeks to escape that conclusion by

noting scattered dicta of Justices Clark and Brennan to the

effect that Congress has the power to punish purely private

action under section 5. See Guest, 383 U.S. at 762 (Clark, J.,

concurring), 782-784 (Brennan, J., concurring in part and

dissenting in part). But the context there was wholly different.

Guest arose out of a conspiracy of six private white individ-

uals who sought to deny black citizens their rights by causing

their arrest through false reports about criminal actions. The

Court held that the interconnection between private and offi-

cial conduct met the Fourteenth Amendment's state-action

requirement. /d. at 756. But even if those defendants’ actions

were treated as purely private, the formulations of both Jus-

tices Clark and Brennan required that the private conduct

charged “interfere with Fourteenth Amendment rights.” /d. at

762, 782. By no stretch of the imagination did the defendants

here act to violate the due process or equal protection rights

of petitioner Brzonkala. Were the Court to let such a conclu-

sion stand, private misconduct would be transmuted into pub-

lic misconduct and the Fourteenth Amendment's state-action

requirement would be obliterated. Guest applies only to situa-

tions where private parties seek to enlist the cooperation of

public officials to deprive people of their Fourteenth Amend-

ment rights, a far cry from the situation here.

CONCLUSION

The Constitution creates a government of limited, enu-

merated powers. It does not confer a general police power on

the Federal Government. That power was reserved to the

states. Petitioner Brzonkala and the government have sought

to justify VAWA’s private right of action under both the

Commerce Clause and section 5 of the Fourteenth Amend-

ment. But they fail to show how gender-based crimes have a

substantial effect on interstate commerce as that test was set

forth in Lopez; or how gender-based crimes constitute state

action as required under the Civil Rights Cases.

30

Petitioners fail to show, in short, that Congress has the

power to enact the statute. The great teaching of this Court for

nearly two centuries now was set forth in Marbury v. Mad-

ison, 5 U.S 137, 176 (1803): “To what purpose are powers

limited, and to what purpose is that limitation committed to

writing, if these limits may, at any time, be passed by those

intended to be restrained?” There being no constitutional

grant of power to support this cause of action, the decision of

the Fourth Circuit should be affirmed.

*Counsel of Record

Respectfully submitted,

*Richarp A. Epstein

1111 East 60th Street

Chicago, IL 60637

(773) 702-9563

INSTITUTE FOR JUSTICE

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