Cite as 95 C.D.O.S. 3074
UNITED STATES, Petitioner
v.
ALFONSO LOPEZ, Jr.
No. 93-1260
In the Supreme Court of the United States
On writ of certiorari to the United States Court of Appeals for
the Fifth Circuit. 2 F.3d 1342, affirmed.
Rehnquist, C.J., delivered the opinion of the Court, in which
O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J.,
filed a concurring opinion, in which O'Connor, J., joined.
Thomas, J., filed a concurring opinion. Stevens, J., and Souter,
J., filed dissenting opinions. Breyer, J., filed a dissenting
opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.
Argued November 8, 1994
Decided April 26, 1995
::::::::::::::::::::::::::: SYLLABUS :::::::::::::::::::::::::::
After respondent, then a 12th-grade student, carried a
concealed handgun into his high school, he was charged with
violating the Gun-Free School Zones Act of 1990, which forbids
"any individual knowingly to possess a firearm at a place that
[he] knows . . . is a school zone," 18 U.S.C. ¤ 922(q)(1)(A).
The District Court denied his motion to dismiss the indictment,
concluding that ¤ 922(q) is a constitutional exercise of
Congress' power to regulate activities in and affecting
commerce. In reversing, the Court of Appeals held that, in light
of what it characterized as insufficient congressional findings
and legislative history, ¤ 922(q) is invalid as beyond Congress'
power under the Commerce Clause.
Held: The Act exceeds Congress' Commerce Clause
authority. First, although this Court has upheld a wide variety
of congressional Acts regulating intrastate economic activity
that substantially affected interstate commerce, the possession
of a gun in a local school zone is in no sense an economic
activity that might, through repetition elsewhere, have such a
substantial effect on interstate commerce. 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
those terms are defined. Nor is it an essential part of a larger
regulation of economic activity, in which the regulatory scheme
could be undercut unless the intrastate activity were regulated.
It cannot, therefore, be sustained under the Court's cases
upholding regulations of activities that arise out of or are
connected with a commercial transaction, which viewed in the
aggregate, substantially affects interstate commerce. Second, ¤
922(q) contains no jurisdictional element which would ensure,
through case-by-case inquiry, that the firearms possession in
question has the requisite nexus with interstate commerce.
Respondent was a local student at a local school; there is no
indication that he had recently moved in interstate commerce,
and there is no requirement that his possession of the firearm
have any concrete tie to interstate commerce. To uphold the
Government's contention that ¤ 922(q) is justified because
firearms possession in a local school zone does indeed
substantially affect interstate commerce would require this
Court to pile inference upon inference in a manner that would
bid fair to convert congressional Commerce Clause authority to a
general police power of the sort held only by the States. Pp. 2
-19.
2 F. 3d 1342, affirmed.
Rehnquist, C.J., delivered the opinion of the Court, in
which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined.
Kennedy, J., filed a concurring opinion, in which O'Connor, J.,
joined. Thomas, J., filed a concurring opinion. Stevens, J., and
Souter, J., filed dissenting opinions. Breyer, J., filed a
dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ.,
joined.
::::::::::::::::::::::::::: OPINION :::::::::::::::::::::::::::
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
In the Gun-Free School Zones Act of 1990, Congress made
it a federal offense "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." 18 U.S.C. 922(q)(1)(A)
(1988 ed., Supp. V). The Act neither regulates a commercial
activity nor contains a requirement that the possession be
connected in any way to interstate commerce. We hold that the
Act exceeds the authority of Congress "[t]o regulate Commerce .
cl. 3.
On March 10, 1992, respondent, who was then a 12th-grade
student, arrived at Edison High School in San Antonio, Texas,
carrying a concealed .38 caliber handgun and five bullets.
Acting upon an anonymous tip, school authorities confronted
respondent, who admitted that he was carrying the weapon. He was
arrested and charged under Texas law with firearm possession on
school premises. See Tex. Penal Code Ann. 46.03(a)(1) (Supp.
1994). The next day, the state charges were dismissed after
federal agents charged respondent by complaint with violating
the Gun-Free School Zones Act of 1990. 18 U.S.C. 922(q)(1)(A)
(1988 ed., Supp. V).[FOOTNOTE 1]
A federal grand jury indicted respondent on one count of
knowing possession of a firearm at a school zone, in violation
of 922(q). Respondent moved to dismiss his federal indictment
on the ground that 922(q) "is unconstitutional as it is beyond
the power of Congress to legislate control over our public
schools." The District Court denied the motion, concluding that
922(q) "is a constitutional exercise of Congress' well-defined
power to regulate activities in and affecting commerce, and the
'business' of elementary, middle and high schools . . . affects
interstate commerce." App. to Pet. for Cert. 55a. Respondent
waived his right to a jury trial. The District Court conducted a
bench trial, found him guilty of violating 922(q), and
sentenced him to six months' imprisonment and two years'
supervised release.
On appeal, respondent challenged his conviction based on
his claim that 922(q) exceeded Congress' power to legislate
under the Commerce Clause. The Court of Appeals for the Fifth
Circuit agreed and reversed respondent's conviction. It held
that, in light of what it characterized as insufficient
congressional findings and legislative history, "section 922(q),
in the full reach of its terms, is invalid as beyond the power
of Congress under the Commerce Clause." 2 F.3d 1342, 1367-1368
(1993). Because of the importance of the issue, we granted
certiorari, 511 U.S. ___ (1994), and we now affirm.
We start with first principles. The Constitution creates
a Federal Government of enumerated powers. See U.S. Const., Art.
I, 8. As James Madison wrote, "[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." The Federalist No. 45, pp. 292-293 (C.
Rossiter ed. 1961). This constitutionally mandated division of
authority "was adopted by the Framers to ensure protection of
our fundamental liberties." Gregory v. Ashcroft, 501 U.S. 452,
458 (1991) (internal quotation marks omitted). "Just as the
separation and independence of the coordinate branches of the
Federal Government serves to prevent the accumulation of
excessive power in any one branch, a healthy balance of power
between the States and the Federal Government will reduce the
risk of tyranny and abuse from either front." Ibid.
The Constitution delegates to Congress the power "[t]o
regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes." U.S. Const., Art. I, 8,
cl. 3. The Court, through Chief Justice Marshall, first defined
the nature of Congress' commerce power in Gibbons v. Ogden, 9
Wheat. 1, 189-190 (1824):
"Commerce, undoubtedly, is traffic, but it is something
more: it is intercourse. It describes the commercial intercourse
between nations, and parts of nations, in all its branches, and
is regulated by prescribing rules for carrying on that
intercourse."
The commerce power "is the power to regulate; that is, to
prescribe the rule by which commerce is to be governed. This
power, like all others vested in Congress, is complete in
itself, may be exercised to its utmost extent, and acknowledges
no limitations, other than are prescribed in the constitution."
Id., at 196. The Gibbons Court, however, acknowledged that
limitations on the commerce power are inherent in the very
language of the Commerce Clause.
"It is not intended to say that these words comprehend
that commerce, which is completely internal, which is carried on
between man and man in a State, or between different parts of
the same State, and which does not extend to or affect other
States. Such a power would be inconvenient, and is certainly
unnecessary.
"Comprehensive as the word 'among' is, it may very
properly be restricted to that commerce which concerns more
States than one. . . . The enumeration presupposes something not
enumerated; and that something, if we regard the language or the
subject of the sentence, must be the exclusively internal
commerce of a State." Id., at 194-195.
For nearly a century thereafter, the Court's Commerce
Clause decisions dealt but rarely with the extent of Congress'
power, and almost entirely with the Commerce Clause as a limit
on state legislation that discriminated against interstate
commerce. See, e.g., Veazie v. Moor, 14 How. 568, 573-575 (1853)
(upholding a state-created steamboat monopoly because it
involved regulation of wholly internal commerce); Kidd v.
Pearson, 128 U.S. 1, 17, 20-22 (1888) (upholding a state
prohibition on the manufacture of intoxicating liquor because
the commerce power "does not comprehend the purely domestic
commerce of a State which is carried on between man and man
within a State or between different parts of the same State");
see also L. Tribe, American Constitutional Law 306 (2d ed.
1988). Under this line of precedent, the Court held that certain
categories of activity such as "production," "manufacturing,"
and "mining" were within the province of state governments, and
thus were beyond the power of Congress under the Commerce
Clause. See Wickard v. Filburn, 317 U.S. 111, 121 (1942)
(describing development of Commerce Clause jurisprudence).
In 1887, Congress enacted the Interstate Commerce Act, 24
Stat. 379, and in 1890, Congress enacted the Sherman Antitrust
Act, 26 Stat. 209, as amended, 15 U.S.C. 1 et seq. These laws
ushered in a new era of federal regulation under the commerce
power. When cases involving these laws first reached this Court,
we imported from our negative Commerce Clause cases the approach
that Congress could not regulate activities such as
"production," "manufacturing," and "mining." See, e.g., United
States v. E. C. Knight Co., 156 U.S. 1, 12 (1895) ("Commerce
succeeds to manufacture, and is not part of it"); Carter v.
Carter Coal Co., 298 U.S. 238, 304 (1936) ("Mining brings the
subject matter of commerce into existence. Commerce disposes of
it"). Simultaneously, however, the Court held that, where the
interstate and intrastate aspects of commerce were so mingled
together that full regulation of interstate commerce required
incidental regulation of intrastate commerce, the Commerce
Clause authorized such regulation. See, e.g., Houston, E. & W.
T. R. Co. v. United States, 234 U.S. 342 (1914) (Shreveport Rate
Cases).
In A. L. A. Schecter Poultry Corp. v. United States, 295
U.S. 495, 550 (1935), the Court struck down regulations that
fixed the hours and wages of individuals employed by an
intrastate business because the activity being regulated related
to interstate commerce only indirectly. In doing so, the Court
characterized the distinction between direct and indirect
effects of intrastate transactions upon interstate commerce as
"a fundamental one, essential to the maintenance of our
constitutional system." Id., at 548. Activities that affected
interstate commerce directly were within Congress' power;
activities that affected interstate commerce indirectly were
beyond Congress' reach. Id., at 546. The justification for this
formal distinction was rooted in the fear that otherwise "there
would be virtually no limit to the federal power and for all
practical purposes we should have a completely centralized
government." Id., at 548.
Two years later, in the watershed case of NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1 (1937), the Court upheld the
National Labor Relations Act against a Commerce Clause
challenge, and in the process, departed from the distinction
between "direct" and "indirect" effects on interstate commerce.
Id., at 36-38 ("The question [of the scope of Congress' power]
is necessarily one of degree"). The Court held that intrastate
activities that "have such a close and substantial relation to
interstate commerce that their control is essential or
appropriate to protect that commerce from burdens and
obstructions" are within Congress' power to regulate. Id., at
37.
In United States v. Darby, 312 U.S. 100 (1941), the Court
upheld the Fair Labor Standards Act, stating:
"The power of Congress over interstate commerce is not
confined to the regulation of commerce among the states. It
extends to those activities intrastate which so affect
interstate commerce or the exercise of the power of Congress
over it as to make regulation of them appropriate means to the
attainment of a legitimate end, the exercise of the granted
power of Congress to regulate interstate commerce." Id., at 118.
See also United States v. Wrightwood Dairy Co., 315 U.S.
110, 119 (1942) (the commerce power "extends to those intrastate
activities which in a substantial way interfere with or obstruct
the exercise of the granted power").
In Wickard v. Filburn, the Court upheld the application
of amendments to the Agricultural Adjustment Act of 1938 to the
production and consumption of home-grown wheat. 317 U.S., at
128-129. The Wickard Court explicitly rejected earlier
distinctions between direct and indirect effects on interstate
commerce, stating:
"[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.'" Id., at 125.
The Wickard Court emphasized that although Filburn's own
contribution to the demand for wheat may have been trivial by
itself, that was not "enough to remove him from the scope of
federal regulation where, as here, his contribution, taken
together with that of many others similarly situated, is far
from trivial." Id., at 127-128.
Jones & Laughlin Steel, Darby, and Wickard ushered in an
era of Commerce Clause jurisprudence that greatly expanded the
previously defined authority of Congress under that Clause. In
part, this was a recognition of the great changes that had
occurred in the way business was carried on in this country.
Enterprises that had once been local or at most regional in
nature had become national in scope. But the doctrinal change
also reflected a view that earlier Commerce Clause cases
artificially had constrained the authority of Congress to
regulate interstate commerce.
But even these modern-era precedents which have expanded
congressional power under the Commerce Clause confirm that this
power is subject to outer limits. In Jones & Laughlin Steel, the
Court warned that the scope of the interstate commerce power
"must be considered in the light of our dual system of
government and may not be extended so as to embrace effects upon
interstate commerce so indirect and remote that to embrace them,
in view of our complex society, would effectually obliterate the
distinction between what is national and what is local and
create a completely centralized government." 301 U.S., at 37;
see also Darby, supra, at 119-120 (Congress may regulate
intrastate activity that has a "substantial effect" on
interstate commerce); Wickard, supra, at 125 (Congress may
regulate activity that "exerts a substantial economic effect on
interstate commerce"). Since that time, the Court has heeded
that warning and undertaken to decide whether a rational basis
existed for concluding that a regulated activity sufficiently
affected interstate commerce. See, e.g., Hodel v. Virginia
Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-280
(1981); Perez v. United States, 402 U.S. 146, 155-156 (1971);
Katzenbach v. McClung, 379 U.S. 294, 299-301 (1964); Heart of
Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-253
(1964).[FOOTNOTE 2]
Similarly, in Maryland v. Wirtz, 392 U.S. 183 (1968), the
Court reaffirmed that "the power to regulate commerce, though
broad indeed, has limits" that "[t]he Court has ample power" to
enforce. Id., at 196, overruled on other grounds, National
League of Cities v. Usery, 426 U.S. 833 (1976), overruled by
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S.
528 (1985). In response to the dissent's warnings that the Court
was powerless to enforce the limitations on Congress' commerce
powers because "[a]ll activities affecting commerce, even in the
minutest degree, [Wickard], may be regulated and controlled by
Congress," 392 U.S., at 204 (Douglas, J., dissenting), the Wirtz
Court replied that the dissent had misread precedent as
"[n]either here nor in Wickard has the Court declared that
Congress may use a relatively trivial impact on commerce as an
excuse for broad general regulation of state or private
activities," id., at 197, n. 27. Rather, "[t]he Court has said
only that where a general regulatory statute bears a substantial
relation to commerce, the de minimis character of individual
instances arising under that statute is of no consequence."
Ibid. (first emphasis added).
Consistent with this structure, we have identified three
broad categories of activity that Congress may regulate under
its commerce power. Perez v. United States, supra, at 150; see
also Hodel v. Virginia Surface Mining & Reclamation Assn.,
supra, at 276-277. First, Congress may regulate the use of the
channels of interstate commerce. See, e.g., Darby, 312 U.S., at
114; Heart of Atlanta Motel, supra, at 256 ("'[T]he authority of
Congress to keep the channels of interstate commerce free from
immoral and injurious uses has been frequently sustained, and is
no longer open to question.'" (quoting Caminetti v. United
States, 242 U.S. 470, 491 (1917)). Second, Congress is empowered
to regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even
though the threat may come only from intrastate activities. See,
e.g., Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R.
Co. v. United States, 222 U.S. 20 (1911) (upholding amendments
to Safety Appliance Act as applied to vehicles used in
intrastate commerce); Perez, supra, at 150 ("[F]or example, the
destruction of an aircraft (18 U.S.C. 32), or . . . thefts
from interstate shipments (18 U.S.C. 659)"). Finally,
Congress' commerce authority includes the power to regulate
those activities having a substantial relation to interstate
commerce, Jones & Laughlin Steel, 301 U.S., at 37, i.e., those
activities that substantially affect interstate commerce. Wirtz,
supra, at 196, n. 27.
Within this final category, admittedly, our case law has
not been clear whether an activity must "affect" or
"substantially affect" interstate commerce in order to be within
Congress' power to regulate it under the Commerce Clause.
Compare Preseault v. ICC, 494 U.S. 1, 17 (1990), with Wirtz,
supra, at 196, n. 27 (the Court has never declared that
"Congress may use a relatively trivial impact on commerce as an
excuse for broad general regulation of state or private
activities"). We conclude, consistent with the great weight of
our case law, that the proper test requires an analysis of
whether the regulated activity "substantially affects"
interstate commerce.
We now turn to consider the power of Congress, in the
light of this framework, to enact 922(q). The first two
categories of authority may be quickly disposed of: 922(q) is
not a regulation of the use of the channels of interstate
commerce, nor is it an attempt to prohibit the interstate
transportation of a commodity through the channels of commerce;
nor can 922(q) be justified as a regulation by which Congress
has sought to protect an instrumentality of interstate commerce
or a thing in interstate commerce. Thus, if 922(q) is to be
sustained, it must be under the third category as a regulation
of an activity that substantially affects interstatecommerce.
First, we 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; Hodel, supra, intrastate extortionate credit
transactions, Perez, supra, restaurants utilizing substantial
interstate supplies, McClung, supra, inns and hotels catering to
interstate guests, Heart of Atlanta Motel, supra, and production
and consumption of home-grown wheat, Wickard v. Filburn, 317
U.S. 111 (1942). These examples are by no means exhaustive, but
the pattern is clear. Where economic activity substantially
affects interstate commerce, legislation regulating that
activity will be sustained.
Even Wickard, which is perhaps the most far reaching
example of Commerce Clause authority over intrastate activity,
involved economic activity in a way that the possession of a gun
in a school zone does not. Roscoe Filburn operated a small farm
in Ohio, on which, in the year involved, he raised 23 acres of
wheat. It was his practice to sow winter wheat in the fall, and
after harvesting it in July to sell a portion of the crop, to
feed part of it to poultry and livestock on the farm, to use
some in making flour for home consumption, and to keep the
remainder for seeding future crops. The Secretary of Agriculture
assessed a penalty against him under the Agricultural Adjustment
Act of 1938 because he harvested about 12 acres more wheat than
his allotment under the Act permitted. The Act was designed to
regulate the volume of wheat moving in interstate and foreign
commerce in order to avoid surpluses and shortages, and
concomitant fluctuation in wheat prices, which had previously
obtained. The Court said, in an opinion sustaining the
application of the Act to Filburn's activity:
"One of the primary purposes of the Act in question was
to increase the market price of wheat and to that end to limit
the volume thereof that could affect the market. It can hardly
be denied that a factor of such volume and variability as home
-consumed wheat would have a substantial influence on price and
market conditions. This may arise because being in marketable
condition such wheat overhangs the market and, if induced by
rising prices, tends to flow into the market and check price
increases. But if we assume that it is never marketed, it
supplies a need of the man who grew it which would otherwise be
reflected by purchases in the open market. Home-grown wheat in
this sense competes with wheat in commerce." 317 U.S., at 128.
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.[FOOTNOTE 3] Section 922(q) is not an essential part of a
larger regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity were
regulated. It cannot, therefore, be sustained under our cases
upholding regulations of activities that arise out of or are
connected with a commercial transaction, which viewed in the
aggregate, substantially affects interstate commerce.
Second, 922(q) contains no jurisdictional element which
would ensure, through case-by-case inquiry, that the firearm
possession in question affects interstate commerce. For example,
in United States v. Bass, 404 U.S. 336 (1971), the Court
interpreted former 18 U.S.C. 1202(a), which made it a crime
for a felon to "receiv[e], posses[s], or transpor[t] in commerce
or affecting commerce . . . any firearm." 404 U.S., at 337. The
Court interpreted the possession component of 1202(a) to
require an additional nexus to interstate commerce both because
the statute was ambiguous and because "unless Congress conveys
its purpose clearly, it will not be deemed to have significantly
changed the federal-state balance." Id., at 349. The Bass Court
set aside the conviction because although the Government had
demonstrated that Bass had possessed a firearm, it had failed
"to show the requisite nexus with interstate commerce." Id., at
347. The Court thus interpreted the statute to reserve the
constitutional question whether Congress could regulate, without
more, the "mere possession" of firearms. See id., at 339, n. 4;
see also United States v. Five Gambling Devices, 346 U.S. 441,
448 (1953) (plurality opinion) ("The principle is old and deeply
imbedded in our jurisprudence that this Court will construe a
statute in a manner that requires decision of serious
constitutional questions only if the statutory language leaves
no reasonable alternative"). Unlike the statute in Bass,
922(q) has no express jurisdictional element which might limit
its reach to a discrete set of firearm possessions that
additionally have an explicit connection with or effect on
interstate commerce.
Although as 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,
see, e.g., Preseault v. ICC, 494 U.S. 1, 17 (1990), the
Government concedes that "[n]either the statute nor its
legislative history contain[s] express congressional findings
regarding the effects upon interstate commerce of gun possession
in a school zone." Brief for United States 5-6. We agree with
the Government that Congress normally is not required to make
formal findings as to the substantial burdens that an activity
has on interstate commerce. See McClung, 379 U.S., at 304; see
also Perez, 402 U.S., at 156 ("Congress need [not] make
particularized findings in order to legislate"). But to the
extent that congressional findings would enable us to evaluate
the legislative judgment that the activity in question
substantially affected interstate commerce, even though no such
substantial effect was visible to the naked eye, they are
lacking here.[FOOTNOTE 4]
The Government argues that Congress has accumulated
institutional expertise regarding the regulation of firearms
through previous enactments. Cf. Fullilove v. Klutznick, 448
U.S. 448, 503 (1980) (Powell, J., concurring). We agree,
however, with the Fifth Circuit that importation of previous
findings to justify 922(q) is especially inappropriate here
because the "prior federal enactments or Congressional findings
[do not] speak to the subject matter of section 922(q) or its
relationship to interstate commerce. Indeed, section 922(q)
plows thoroughly new ground and represents a sharp break with
the long-standing pattern of federal firearms legislation." 2
F.3d, at 1366.
The Government's essential contention, in fine, is that
we may determine here that 922(q) is valid because possession
of a firearm in a local school zone does indeed substantially
affect interstate commerce. Brief for United States 17. The
Government argues that possession of a firearm in a school zone
may result in violent crime and that violent crime can be
expected to affect the functioning of the national economy in
two ways. First, the costs of violent crime are substantial,
and, through the mechanism of insurance, those costs are spread
throughout the population. See United States v. Evans, 928 F.2d
858, 862 (CA9 1991). Second, violent crime reduces the
willingness of individuals to travel to areas within the country
that are perceived to be unsafe. Cf. Heart of Atlanta Motel, 379
U.S., at 253. The Government also argues that the presence of
guns in schools poses a substantial threat to the educational
process by threatening the learning environment. A handicapped
educational process, in turn, will result in a less productive
citizenry. That, in turn, would have an adverse effect on the
Nation's economic well-being. As a result, the Government argues
that Congress could rationally have concluded that 922(q)
substantially affects interstate commerce.
We pause to consider the implications of the Government's
arguments. The Government admits, under its "costs of crime"
reasoning, that Congress could regulate not only all violent
crime, but all activities that might lead to violent crime,
regardless of how tenuously they relate to interstate commerce.
See Tr. of Oral Arg. 8-9. Similarly, under the Government's
"national productivity" reasoning, Congress could regulate any
activity that it found was related to the economic productivity
of individual citizens: family law (including marriage, divorce,
and child custody), for example. Under the theories that the
Government presents in support of 922(q), 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.
Although Justice Breyer argues that acceptance of the
Government's rationales would not authorize a general federal
police power, he is unable to identify any activity that the
States may regulate but Congress may not. Justice Breyer posits
that there might be some limitations on Congress' commerce power
such as family law or certain aspects of education. Post, at 10
-11. These suggested limitations, when viewed in light of the
dissent's expansive analysis, are devoid of substance.
Justice Breyer focuses, for the most part, on the threat
that firearm possession in and near schools poses to the
educational process and the potential economic consequences
flowing from that threat. Post, at 5-9. Specifically, the
dissent reasons that (1) gun-related violence is a serious
problem; (2) that problem, in turn, has an adverse effect on
classroom learning; and (3) that adverse effect on classroom
learning, in turn, represents a substantial threat to trade and
commerce. Post, at 9. This analysis would be equally applicable,
if not more so, to subjects such as family law and direct
regulation of education.
For instance, if Congress can, pursuant to its Commerce
Clause power, regulate activities that adversely affect the
learning environment, then, a fortiori, it also can regulate the
educational process directly. Congress could determine that a
school's curriculum has a "significant" effect on the extent of
classroom learning. As a result, Congress could mandate a
federal curriculum for local elementary and secondary schools
because what is taught in local schools has a significant
"effect on classroom learning," cf. post, at 9, and that, in
turn, has a substantial effect on interstate commerce.
Justice Breyer rejects our reading of precedent and
argues that "Congress . . . could rationally conclude that
schools fall on the commercial side of the line." Post, at 16.
Again, Justice Breyer's rationale lacks any real limits because,
depending on the level of generality, any activity can be looked
upon as commercial. Under the dissent's rationale, Congress
could just as easily look at child rearing as "fall[ing] on the
commercial side of the line" because it provides a "valuable
service-namely, to equip [children] with the skills they need to
survive in life and, more specifically, in the workplace." Ibid.
We do not doubt that Congress has authority under the Commerce
Clause to regulate numerous commercial activities that
substantially affect interstate commerce and also affect the
educational process. That authority, though broad, does not
include the authority to regulate each and every aspect of local
schools.
Admittedly, a determination whether an intrastate
activity is commercial or noncommercial may in some cases result
in legal uncertainty. But, so long as Congress' authority is
limited to those powers enumerated in the Constitution, and so
long as those enu-merated powers are interpreted as having
judicially enforceable outer limits, congressional legislation
under the Commerce Clause always will engender "legal
uncertainty." Post, at 17. As Chief Justice Marshall stated in
McCulloch v. Maryland, 4 Wheat. 316 (1819):
"The [federal] government is acknowledged by all to be
one of enumerated powers. The principle, that it can exercise
only the powers granted to it . . . is now universally admitted.
But the question respecting the extent of the powers actually
granted, is perpetually arising, and will probably continue to
arise, as long as our system shall exist." Id., at 405.
See also Gibbons v. Ogden, 9 Wheat., at 195 ("The
enumeration presupposes something not enumerated"). The
Constitution mandates this uncertainty by withholding from
Congress a plenary police power that would authorize enactment
of every type of legislation. See U.S. Const., Art. I, 8.
Congress has operated within this framework of legal uncertainty
ever since this Court determined that it was the judiciary's
duty "to say what the law is." Marbury v. Madison, 1 Cranch.
137, 177 (1803) (Marshall, C. J.). Any possible benefit from
eliminating this "legal uncertainty" would be at the expense of
the Constitution's system of enumerated powers.
In Jones & Laughlin Steel, 301 U.S., at 37, we held that
the question of congressional power under the Commerce Clause
"is necessarily one of degree." To the same effect is the
concurring opinion of Justice Cardozo in Schecter Poultry:
"There is a view of causation that would obliterate the
distinction of what is national and what is local in the
activities of commerce. Motion at the outer rim is communicated
perceptibly, though minutely, to recording instruments at the
center. A society such as ours 'is an elastic medium which
transmits all tremors throughout its territory; the only
question is of their size.'" 295 U.S., at 554 (quoting United
States v. A.L.A. Schecter Poultry Corp, 76 F.2d 617, 624 (CA2
1935) (L. Hand, J., concurring)).
These are not precise formulations, and in the nature of
things they cannot be. But we think they point the way to a
correct decision of this case. The possession of a gun in a
local school zone is in no sense an economic activity that
might, through repetition elsewhere, substantially affect any
sort of interstate commerce. Respondent was a local student at a
local school; there is no indication that he had recently moved
in interstate commerce, and there is no requirement that his
possession of the firearm have any concrete tie to interstate
commerce.
To uphold the Government's contentions here, we 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. Admittedly, some of our prior cases have taken long
steps down that road, giving great deference to congressional
action. See supra, at 8. The broad language in these opinions
has suggested the possibility of additional expansion, but we
decline here to proceed any further. To do so would require us
to conclude that the Constitution's enumeration of powers does
not presuppose something not enumerated, cf. Gibbons v. Ogden,
supra, at 195, and that there never will be a distinction
between what is truly national and what is truly local, cf.
Jones & Laughlin Steel, supra, at 30. This we are unwilling to
do.
For the foregoing reasons the judgment of the Court of
Appeals is
Affirmed.
JUSTICE KENNEDY, with whom JUSTICE O'CONNOR joins,
concurring.
The history of the judicial struggle to interpret the
Commerce Clause during the transition from the economic system
the Founders knew to the single, national market still emergent
in our own era counsels great restraint before the Court
determines that the Clause is insufficient to support an
exercise of the national power. That history gives me some pause
about today's decision, but I join the Court's opinion with
these observations on what I conceive to be its necessary though
limited holding.
Chief Justice Marshall announced that the national
authority reaches "that commerce which concerns more States than
one" and that the commerce power "is complete in itself, may be
exercised to its utmost extent, and acknowledges no limitations,
other than are prescribed in the constitution." Gibbons v.
Ogden, 9 Wheat. 1, 194, 196 (1824). His statements can be
understood now as an early and authoritative recognition that
the Commerce Clause grants Congress extensive power and ample
discretion to determine its appropriate exercise. The
progression of our Commerce Clause cases from Gibbons to the
present was not marked, however, by a coherent or consistent
course of interpretation; for neither the course of
technological advance nor the foundational principles for the
jurisprudence itself were self-evident to the courts that sought
to resolve contemporary disputes by enduring principles.
Furthermore, for almost a century after the adoption of
the Constitution, the Court's Commerce Clause decisions did not
concern the authority of Congress to legislate. Rather, the
Court faced the related but quite distinct question of the
authority of the States to regulate matters that would be within
the commerce power had Congress chosen to act. The simple fact
was that in the early years of the Republic, Congress seldom
perceived the necessity to exercise its power in circumstances
where its authority would be called into question. The Court's
initial task, therefore, was to elaborate the theories that
would permit the States to act where Congress had not done so.
Not the least part of the problem was the unresolved question
whether the congressional power was exclusive, a question
reserved by Chief Justice Marshall in Gibbons v. Ogden, supra,
at 209-210.
At the midpoint of the 19th century, the Court embraced
the principle that the States and the National Government both
have authority to regulate certain matters absent the
congressional determination to displace local law or the
necessity for the Court to invalidate local law because of the
dormant national power. Cooley v. Board of Wardens of Port of
Philadelphia, 12 How. 299, 318-321 (1852). But the utility of
that solution was not at once apparent, see generally F.
Frankfurter, The Commerce Clause under Marshall, Taney and Waite
(1937) (hereinafter Frankfurter), and difficulties of
application persisted, see Leisy v. Hardin, 135 U.S. 100, 122
-125 (1890).
One approach the Court used to inquire into the
lawfulness of state authority was to draw content-based or
subject-matter distinctions, thus defining by semantic or
formalistic categories those activities that were commerce and
those that were not. For instance, in deciding that a State
could prohibit the in-state manufacture of liquor intended for
out-of-state shipment, it distinguished between manufacture and
commerce. "No distinction is more popular to the common mind, or
more clearly expressed in economic and political literature,
than that between manufactur[e] and commerce. Manufacture is
transformation-the fashioning of raw materials into a change of
form for use. The functions of commerce are different." Kidd v.
Pearson, 128 U.S. 1, 20 (1888). Though that approach likely
would not have survived even if confined to the question of a
State's authority to enact legislation, it was not at all
propitious when applied to the quite different question of what
subjects were within the reach of the national power when
Congress chose to exercise it.
This became evident when the Court began to confront
federal economic regulation enacted in response to the rapid
industrial development in the late 19th century. Thus, it relied
upon the manufacture-commerce dichotomy in United States v. E.
C. Knight Co., 156 U.S. 1 (1895), where a manufacturers'
combination controlling some 98% of the Nation's domestic sugar
refining capacity was held to be outside the reach of the
Sherman Act. Conspiracies to control manufacture, agriculture,
mining, production, wages, or prices, the Court explained, had
too "indirect" an effect on interstate commerce. Id., at 16. And
in Adair v. United States, 208 U.S. 161 (1908), the Court
rejected the view that the commerce power might extend to
activities that, although local in the sense of having
originated within a single state, nevertheless had a practical
effect on interstate commercial activity. The Court concluded
that there was not a "legal or logical connection . . . between
an employ‚'s membership in a labor organization and the carrying
on of interstate commerce," id., at 178, and struck down a
federal statute forbidding the discharge of an employee because
of his membership in a labor organization. See also The
Employers' Liability Cases, 207 U.S. 463, 497 (1908)
(invalidating statute creating negligence action against common
carriers for personal injuries of employees sustained in the
course of employment, because the statute "regulates the persons
because they engage in interstate commerce and does not alone
regulate the business of interstate commerce").
Even before the Court committed itself to sustaining
federal legislation on broad principles of economic
practicality, it found it necessary to depart from these
decisions. The Court disavowed E. C. Knight's reliance on the
manufacturing-commerce distinction in Standard Oil Co. of New
Jersey v. United States, 221 U.S. 1, 68-69 (1911), declaring
that approach "unsound." The Court likewise rejected the
rationale of Adair when it decided, in Texas & New Orleans R.
Co. v. Railway Clerks, 281 U.S. 548, 570-571 (1930), that
Congress had the power to regulate matters pertaining to the
organization of railroad workers.
In another line of cases, the Court addressed Congress'
efforts to impede local activities it considered undesirable by
prohibiting the interstate movement of some essential element.
In the Lottery Case, 188 U.S. 321 (1903), the Court rejected the
argument that Congress lacked power to prohibit the interstate
movement of lottery tickets because it had power only to
regulate, not to prohibit. See also Hipolite Egg Co. v. United
States, 220 U.S. 45 (1911); Hoke v. United States, 227 U.S. 308
(1913). In Hammer v. Dagenhart, 247 U.S. 251 (1918), however,
the Court insisted that the power to regulate commerce "is
directly the contrary of the assumed right to forbid commerce
from moving," id., at 269-270, and struck down a prohibition on
the interstate transportation of goods manufactured in violation
of child labor laws.
Even while it was experiencing difficulties in finding
satisfactory principles in these cases, the Court was pursuing a
more sustainable and practical approach in other lines of
decisions, particularly those involving the regulation of
railroad rates. In the Minnesota Rate Cases, 230 U.S. 352
(1913), the Court upheld a state rate order, but observed that
Congress might be empowered to regulate in this area if "by
reason of the interblending of the interstate and intrastate
operations of interstate carriers" the regulation of interstate
rates could not be maintained without restrictions on
"intrastate rates which substantially affect the former." Id.,
at 432-433. And in the Shreveport Rate Cases, 234 U.S. 342
(1914), the Court upheld an ICC order fixing railroad rates with
the explanation that congressional authority, "extending to
these interstate carriers as instruments of interstate commerce,
necessarily embraces the right to control their operations in
all matters having such a close and substantial relation to
interstate traffic that the control is essential or appropriate
to the security of that traffic, to the efficiency of the
interstate service, and to the maintenance of conditions under
which interstate commerce may be conducted upon fair terms and
without molestation or hindrance." Id., at 351.
Even the most confined interpretation of "commerce" would
embrace transportation between the States, so the rate cases
posed much less difficulty for the Court than cases involving
manufacture or production. Nevertheless, the Court's recognition
of the importance of a practical conception of the commerce
power was not altogether confined to the rate cases. In Swift &
Co. v. United States, 196 U.S. 375 (1905), the Court upheld the
application of federal antitrust law to a combination of meat
dealers that occurred in one State but that restrained trade in
cattle "sent for sale from a place in one State, with the
expectation that they will end their transit . . . in another."
Id., at 398. The Court explained that "commerce among the States
is not a technical legal conception, but a practical one, drawn
from the course of business." Id., at 398. Chief Justice Taft
followed the same approach in upholding federal regulation of
stockyards in Stafford v. Wallace, 258 U.S. 495 (1922). Speaking
for the Court, he rejected a "nice and technical inquiry," id.,
at 519, when the local transactions at issue could not "be
separated from the movement to which they contribute," id., at
516.
Reluctance of the Court to adopt that approach in all of
its cases caused inconsistencies in doctrine to persist,
however. In addressing New Deal legislation the Court
resuscitated the abandoned abstract distinction between direct
and indirect effects on interstate commerce. See Carter v.
Carter Coal Co., 298 U.S. 238, 309 (1936) (Act regulating price
of coal and wages and hours for miners held to have only
"secondary and indirect" effect on interstate commerce);
Railroad Retirement Bd. v. Alton R. Co., 295 U.S. 330, 368
(1935) (compulsory retirement and pension plan for railroad
carrier employees too "remote from any regulation of commerce as
such"); A. L. A. Schechter Poultry Corp. v. United States, 295
U.S. 495, 548 (1935) (wage and hour law provision of National
Industrial Recovery Act had "no direct relation to interstate
commerce").
The case that seems to mark the Court's definitive
commitment to the practical conception of the commerce power is
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), where
the Court sustained labor laws that applied to manufacturing
facilities, making no real attempt to distinguish Carter, supra,
and Schechter, supra. 301 U.S., at 40-41. The deference given to
Congress has since been confirmed. United States v. Darby, 312
U.S. 100, 116-117 (1941), overruled Hammer v. Dagenhart, supra.
And in Wickard v. Filburn, 317 U.S. 111 (1942), the Court
disapproved E. C. Knight and the entire line of direct-indirect
and manufacture-production cases, explaining that "broader
interpretations of the Commerce Clause [were] destined to
supersede the earlier ones," id., at 122, and "whatever
terminology is used, the criterion is necessarily one of degree
and must be so defined. This does not satisfy those who seek
mathematical or rigid formulas. But such formulas are not
provided by the great concepts of the Constitution," id., at
123, n. 24. Later examples of the exercise of federal power
where commercial transactions were the subject of regulation
include Heart of Atlanta Motel, Inc. v. United States, 379 U.S.
241 (1964), Katzenbach v. McClung, 379 U.S. 294 (1964), and
Perez v. United States, 402 U.S. 146 (1971). These and like
authorities are within the fair ambit of the Court's practical
conception of commercial regulation and are not called in
question by our decision today.
The history of our Commerce Clause decisions contains at
least two lessons of relevance to this case. The first, as
stated at the outset, is the imprecision of content-based
boundaries used without more to define the limits of the
Commerce Clause. The second, related to the first but of even
greater consequence, is that the Court as an institution and the
legal system as a whole have an immense stake in the stability
of our Commerce Clause jurisprudence as it has evolved to this
point. Stare decisis operates with great force in counseling us
not to call in question the essential principles now in place
respecting the congressional power to regulate transactions of a
commercial nature. That fundamental restraint on our power
forecloses us from reverting to an understanding of commerce
that would serve only an 18th-century economy, dependent then
upon production and trading practices that had changed but
little over the preceding centuries; it also mandates against
returning to the time when congressional authority to regulate
undoubted commercial activities was limited by a judicial
determination that those matters had an insufficient connection
to an interstate system. Congress can regulate in the commercial
sphere on the assumption that we have a single market and a
unified purpose to build a stable national economy.
In referring to the whole subject of the federal and
state balance, we said this just three Terms ago:
"This framework has been sufficiently flexible over the
past two centuries to allow for enormous changes in the nature
of government. The Federal Government undertakes activities
today that would have been unimaginable to the Framers in two
senses: first, because the Framers would not have conceived that
any government would conduct such activities; and second,
because the Framers would not have believed that the Federal
Government, rather than the States, would assume such
responsibilities. Yet the powers conferred upon the Federal
Government by the Constitution were phrased in language broad
enough to allow for the expansion of the Federal Government's
role." New York v. United States, 505 U.S. ___, ___ (1992) (slip
op., at 9-10) (emphasis omitted).
It does not follow, however, that in every instance the
Court lacks the authority and responsibility to review
congressional attempts to alter the federal balance. This case
requires us to consider our place in the design of the
Government and to appreciate the significance of federalism in
the whole structure of the Constitution.
Of the various structural elements in the Constitution,
separation of powers, checks and balances, judicial review, and
federalism, only concerning the last does there seem to be much
uncertainty respecting the existence, and the content, of
standards that allow the judiciary to play a significant role in
maintaining the design contemplated by the Framers. Although the
resolution of specific cases has proved difficult, we have
derived from the Constitution workable standards to assist in
preserving separation of powers and checks and balances. See,
e.g., Prize Cases, 2 Black 635 (1863); Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579 (1952); United States v. Nixon, 418
U.S. 683 (1974); Buckley v. Valeo, 424 U.S. 1 (1976); INS v.
Chadha, 462 U.S. 919 (1983); Bowsher v. Synar, 478 U.S. 714
(1986); Plaut v. Spendthrift Farm, ___ U.S. ___ (1995). These
standards are by now well accepted. Judicial review is also
established beyond question, Marbury v. Madison, 1 Cranch 137
(1803), and though we may differ when applying its principles,
see, e.g., Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. ___ (1992), its legitimacy is undoubted. Our
role in preserving the federal balance seems more tenuous.
There is irony in this, because of the four structural
elements in the Constitution just mentioned, federalism was the
unique contribution of the Framers to political science and
political theory. See Friendly, Federalism: A Forward, 86 Yale
L. J. 1019 (1977); G. Wood, The Creation of the American
Republic, 1776-1787, pp. 524-532, 564 (1969). Though on the
surface the idea may seem counterintuitive, it was the insight
of the Framers that freedom was enhanced by the creation of two
governments, not one. "In the compound republic of America, the
power surrendered by the people is first divided between two
distinct governments, and then the portion allotted to each
subdivided among distinct and separate departments. Hence a
double security arises to the rights of the people. The
different governments will control each other, at the same time
that each will be controlled by itself." The Federalist No. 51,
p. 323 (C. Rossiter ed. 1961) (J. Madison). See also Gregory v.
Ashcroft, 501 U.S. 452, 458-459 (1991) ("Just as the separation
and independence of the coordinate branches of the Federal
Government serve to prevent the accumulation of excessive power
in any one branch, a healthy balance of power between the States
and the Federal Government will reduce the risk of tyranny and
abuse from either front. . . . In the tension between federal
and state power lies the promise of liberty"); New York v.
United States, supra, at ___ (slip op., at 34) ("[T]he
Constitution divides authority between federal and state
governments for the protection of individuals. State sovereignty
is not just an end in itself: 'Rather, federalism secures to
citizens the liberties that derive from the diffusion of
sovereign power'") (quoting Coleman v. Thompson, 501 U.S. 722,
759 (1991) (Blackmun, J., dissenting)).
The theory that two governments accord more liberty than
one requires for its realization two distinct and discernable
lines of political accountability: one between the citizens and
the Federal Government; the second between the citizens and the
States. If, as Madison expected, the federal and state
governments are to control each other, see The Federalist No.
51, and hold each other in check by competing for the affections
of the people, see The Federalist No. 46, those citizens must
have some means of knowing which of the two governments to hold
accountable for the failure to perform a given function.
"Federalism serves to assign political responsibility, not to
obscure it." FTC v. Ticor Title Ins. Co., 504 U.S. 621, 636
(1992). Were the Federal Government to take over the regulation
of entire areas of traditional state concern, areas having
nothing to do with the regulation of commercial activities, the
boundaries between the spheres of federal and state authority
would blur and political responsibility would become illusory.
See New York v. United States, supra, at ___; FERC v.
Mississippi, 456 U.S. 742, 787 (1982) (O'Connor, J., concurring
in judgment in part and dissenting in part). The resultant
inability to hold either branch of the government answerable to
the citizens is more dangerous even than devolving too much
authority to the remote central power.
To be sure, one conclusion that could be drawn from The
Federalist Papers is that the balance between national and state
power is entrusted in its entirety to the political process.
Madison's observation that "the people ought not surely to be
precluded from giving most of their confidence where they may
discover it to be most due," The Federalist No. 46, p. 295 (C.
Rossiter ed. 1961), can be interpreted to say that the essence
of responsibility for a shift in power from the State to the
Federal Government rests upon a political judgment, though he
added assurance that "the State governments could have little to
apprehend, because it is only within a certain sphere that the
federal power can, in the nature of things, be advantageously
administered," ibid. Whatever the judicial role, it is axiomatic
that Congress does have substantial discretion and control over
the federal balance.
For these reasons, it would be mistaken and mischievous
for the political branches to forget that the sworn obligation
to preserve and protect the Constitution in maintaining the
federal balance is their own in the first and primary instance.
In the Webster-Hayne Debates, see The Great Speeches and
Orations of Daniel Webster 227-272 (E. Whipple ed. 1879), and
the debates over the Civil Rights Acts, see Hearings on S. 1732
before the Senate Committee on Commerce, 88th Cong., 1st Sess.,
pts. 1-3 (1963), some Congresses have accepted responsibility to
confront the great questions of the proper federal balance in
terms of lasting consequences for the constitutional design. The
political branches of the Government must fulfill this grave
constitutional obligation if democratic liberty and the
federalism that secures it are to endure.
At the same time, the absence of structural mechanisms to
require those officials to undertake this principled task, and
the momentary political convenience often attendant upon their
failure to do so, argue against a complete renunciation of the
judicial role. Although it is the obligation of all officers of
the Government to respect the constitutional design, see Public
Citizen v. Department of Justice, 491 U.S. 440, 466 (1989);
Rostker v. Goldberg, 453 U.S. 57, 64 (1981), the federal balance
is too essential a part of our constitutional structure and
plays too vital a role in securing freedom for us to admit
inability to intervene when one or the other level of Government
has tipped the scales too far.
In the past this Court has participated in maintaining
the federal balance through judicial exposition of doctrines
such as abstention, see, e.g., Younger v. Harris, 401 U.S. 37
(1971); Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496
(1941); Burford v. Sun Oil Co., 319 U.S. 315 (1943), the rules
for determining the primacy of state law, see, e.g., Erie R. Co.
v. Tompkins, 304 U.S. 64 (1938), the doctrine of adequate and
independent state grounds, see, e.g., Murdock v. City of
Memphis, 87 U.S. 590 (1875); Michigan v. Long, 463 U.S. 1032
(1983), the whole jurisprudence of pre-emption, see, e.g., Rice
v. Santa Fe Elevator Corp., 331 U.S. 218 (1947); Cipollone v.
Liggett Group, Inc., 505 U.S. ___ (1992), and many of the rules
governing our habeas jurisprudence, see, e.g., Coleman v.
Thompson, supra; McCleskey v. Zant, 499 U.S. 467 (1991); Teague
v. Lane, 489 U.S. 288 (1989); Rose v. Lundy, 455 U.S. 509
(1982); Wainwright v. Sykes, 433 U.S. 72 (1977).
Our ability to preserve this principle under the Commerce
Clause has presented a much greater challenge. See supra, at 1
-7. "This clause has throughout the Court's history been the
chief source of its adjudications regarding federalism," and "no
other body of opinions affords a fairer or more revealing test of
judicial qualities." Frankfurter 66-67. But as the branch whose
distinctive duty it is to declare "what the law is," Marbury v.
Madison, 1 Cranch, at 177, we are often called upon to resolve
questions of constitutional law not susceptible to the
mechanical application of bright and clear lines. The
substantial element of political judgment in Commerce Clause
matters leaves our institutional capacity to intervene more in
doubt than when we decide cases, for instance, under the Bill of
Rights even though clear and bright lines are often absent in
the latter class of disputes. See County of Allegheny v.
American Civil Liberties Union, Greater Pittsburgh Chapter, 492
U.S. 573, 630 (1989) (O'Connor, J., concurring in part and
concurring in judgment) ("We cannot avoid the obligation to draw
lines, often close and difficult lines" in adjudicating
constitutional rights). But our cases do not teach that we have
no role at all in determining the meaning of the Commerce
Clause.
Our position in enforcing the dormant Commerce Clause is
instructive. The Court's doctrinal approach in that area has
likewise "taken some turns." Oklahoma Tax Comm'n v. Jefferson
Lines, Inc., 514 U.S. ___, ___ (1995) (slip op., at 4). Yet 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. One element of our dormant Commerce Clause jurisprudence
has been the principle that the States may not impose
regulations that place an undue burden on interstate commerce,
even where those regulations do not discriminate between in
-state and out-of-state businesses. See Brown-Forman Distillers
Corp. v. New York State Liquor Authority, 476 U.S. 573, 579
(1986) (citing Pike v. Bruce Church, Inc., 397 U.S. 137, 142
(1970)). Distinguishing between regulations that do place an
undue burden on interstate commerce and regulations that do not
depends upon delicate judgments. True, if we invalidate a state
law, Congress can in effect overturn our judgment, whereas in a
case announcing that Congress has transgressed its authority,
the decision is more consequential, for its stands unless
Congress can revise its law to demonstrate its commercial
character. This difference no doubt informs the circumspection
with which we invalidate an Act of Congress, but it does not
mitigate our duty to recognize meaningful limits on the commerce
power of Congress.
The statute before us upsets the federal balance to a
degree that renders it an unconstitutional assertion of the
commerce power, and our intervention is required. As the Chief
Justice explains, unlike the earlier cases to come before the
Court here neither the actors nor their conduct have a
commercial character, and neither the purposes nor the design of
the statute have an evident commercial nexus. See ante, at 10
-12. The statute makes the simple possession of a gun within
1,000 feet of the grounds of the school a criminal offense. In a
sense any conduct in this interdependent world of ours has an
ultimate commercial origin or consequence, but we have not yet
said the commerce power may reach so far. If Congress attempts
that extension, then at the least we must inquire whether the
exercise of national power seeks to intrude upon an area of
traditional state concern.
An interference of these dimensions occurs here, for it
is well established that education is a traditional concern of
the States. Milliken v. Bradley, 418 U.S. 717, 741-742 (1974);
Epperson v. Arkansas, 393 U.S. 97, 104 (1968). The proximity to
schools, including of course schools owned and operated by the
States or their subdivisions, is the very premise for making the
conduct criminal. In these circumstances, we have a particular
duty to insure that the federal-state balance is not destroyed.
Cf. Rice, supra, at 230 ("[W]e start with the assumption that
the historic police powers of the States" are not displaced by a
federal statute "unless that was the clear and manifest purpose
of Congress"); Florida Lime & Avocado Growers, Inc. v. Paul, 373
U.S. 132, 146 (1963).
While it is doubtful that any State, or indeed any
reasonable person, would argue that it is wise policy to allow
students to carry guns on school premises, considerable
disagreement exists about how best to accomplish that goal. In
this circumstance, the theory and utility of our federalism are
revealed, for the States may perform their role as laboratories
for experimentation to devise various solutions where the best
solution is far from clear. See San Antonio Independent School
Dist. v. Rodriguez, 411 U.S. 1, 49-50 (1973); New State Ice Co.
v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,
dissenting)).
If a State or municipality determines that harsh criminal
sanctions are necessary and wise to deter students from carrying
guns on school premises, the reserved powers of the States are
sufficient to enact those measures. Indeed, over 40 States
already have criminal laws outlawing the possession of firearms
on or near school grounds. See, e.g., Alaska Stat. Ann.
11.61.195(a)(2)(A), 11.61.220(a)(4)(A) (Supp. 1994); Cal. Penal
Code Ann. 626.9 (West Supp. 1994); Mass. Gen. Laws 269:10(j)
(1992); N. J. Stat. Ann. 2C:39-5(e) (West Supp. 1994); Va.
Code Ann. 18.2-308.1 (1988); Wis. Stat. 948.605 (1991-1992).
Other, more practicable means to rid the schools of guns
may be thought by the citizens of some States to be preferable
for the safety and welfare of the schools those States are
charged with maintaining. See Brief for National Conference of
State Legislatures et al., as Amici Curiae 26-30 (injection of
federal officials into local problems causes friction and
diminishes political accountability of state and local
governments). These might include inducements to inform on
violators where the information leads to arrests or confiscation
of the guns, see C. Lima, Schools May Launch Weapons Hot Line,
L. A. Times, Jan. 13, 1995, part B, p. 1, col. 5; Reward for
Tips on Guns in Tucson Schools, The Arizona Republic, Jan. 7,
1995, p. B2; programs to encourage the voluntary surrender of
guns with some provision for amnesty, see A. Zaidan, Akron
Rallies to Save Youths, The Plain Dealer, Mar. 2, 1995, p. 1B;
M. Swift, Legislators Consider Plan to Get Guns Off Streets,
Hartford Courant, Apr. 29, 1992, p. A4; penalties imposed on
parents or guardians for failure to supervise the child, see,
e.g., Okla. Stat., Tit. 21, 858 (Supp. 1995) (fining parents
who allow students to possess firearm at school); Tenn. Code
Ann. 39-17-1312 (Supp. 1992) (misdemeanor for parents to allow
student to possess firearm at school); Straight Shooter: Gov.
Casey's Reasonable Plan to Control Assault Weapons, Pittsburgh
Post-Gazette, Mar. 14, 1994, p. B2 (proposed bill); E. Bailey,
Anti-Crime Measures Top Legislators' Agenda, L. A. Times, Mar.
7, 1994, part B, p. 1, col. 2 (same); G. Krupa, New Gun-Control
Plans Could Tighten Local Law, The Boston Globe, June 20, 1993,
p. 29; laws providing for suspension or expulsion of gun-toting
students, see, e.g., Ala. Code 16-1-24.1 (Supp. 1994); Ind.
Code 20-8.1-5-4(b)(1)(D) (1993); Ky. Rev. Stat. Ann.
158.150(1)(a) (Michie 1992); Wash. Rev. Code 9.41.280 (1994),
or programs for expulsion with assignment to special facilities,
see J. Martin, Legislators Poised to Take Harsher Stand on Guns
in Schools, The Seattle Times, Feb. 1, 1995, p. B1 (automatic
-year-long expulsion for students with guns and intense semester
-long reentry program).
The statute now before us forecloses the States from
experimenting and exercising their own judgment in an area to
which States lay claim by right of history and expertise, and it
does so by regulating an activity beyond the realm of commerce
in the ordinary and usual sense of that term. The tendency of
this statute to displace state regulation in areas of
traditional state concern is evident from its territorial
operation. There are over 100,000 elementary and secondary
schools in the United States. See U.S. Dept. of Education,
National Center for Education Statistics, Digest of Education
Statistics 73, 104 (NCES 94-115, 1994) (Tables 63, 94). Each of
these now has an invisible federal zone extending 1,000 feet
beyond the (often irregular) boundaries of the school property.
In some communities no doubt it would be difficult to navigate
without infringing on those zones. Yet throughout these areas,
school officials would find their own programs for the
prohibition of guns in danger of displacement by the federal
authority unless the State chooses to enact a parallel rule.
This is not a case where the etiquette of federalism has
been violated by a formal command from the National Government
directing the State to enact a certain policy, cf. New York v.
United States, 505 U.S. ___ (1992), or to organize its
governmental functions in a certain way, cf. FERC v.
Mississippi, 456 U.S., at 781 (O'Connor, J., concurring in
judgment in part and dissenting in part). While the intrusion on
state sovereignty may not be as severe in this instance as in
some of our recent Tenth Amendment cases, the intrusion is
nonetheless significant. Absent a stronger connection or
identification with commercial concerns that are central to the
Commerce Clause, that interference contradicts the federal
balance the Framers designed and that this Court is obliged to
enforce.
For these reasons, I join in the opinion and judgment of
the Court.
JUSTICE THOMAS, concurring.
The Court today properly concludes that the Commerce
Clause does not grant Congress the authority to prohibit gun
possession within 1,000 feet of a school, as it attempted to do
in the Gun-Free School Zones Act of 1990, Pub. L. 101-647, 104
Stat. 4844. Although I join the majority, I write separately to
observe that our case law has drifted far from the original
understanding of the Commerce Clause. In a future case, we ought
to temper our Commerce Clause jurisprudence in a manner that
both makes sense of our more recent case law and is more
faithful to the original understanding of that Clause.
We have said that Congress may regulate not only
"Commerce . . . among the several states," U.S. Const., Art. I,
8, cl. 3, but also anything that has a "substantial effect" on
such commerce. This test, if taken to its logical extreme, would
give Congress a "police power" over all aspects of American
life. Unfortunately, we have never come to grips with this
implication of our substantial effects formula. Although we have
supposedly applied the substantial effects test for the past 60
years, we always have rejected readings of the Commerce Clause
and the scope of federal power that would permit Congress to
exercise a police power; our cases are quite clear that there
are real limits to federal power. See New York v. United States,
505 U.S. ___, ___ (1992) (slip op., at 7) ("[N]o one disputes
the proposition that '[t]he Constitution created a Federal
Government of limited powers'") (quoting Gregory v. Ashcroft,
501 U.S. 452, 457 (1991); Maryland v. Wirtz, 392 U.S. 183, 196
(1968); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37
(1937). Cf. Chisholm v. Georgia, 2 Dall. 419, 435 (1793)
(Iredell, J.) ("Each State in the Union is sovereign as to all
the powers reserved. It must necessarily be so, because the
United States have no claim to any authority but such as the
States have surrendered to them"). Indeed, on this crucial
point, the majority and Justice Breyer agree in principle: the
Federal Government has nothing approaching a police power.
Compare ante, at 7-9 with post, at 10-11.
While the principal dissent concedes that there are
limits to federal power, the sweeping nature of our current test
enables the dissent to argue that Congress can regulate gun
possession. But it seems to me that the power to regulate
"commerce" can by no means encompass authority over mere gun
possession, any more than it empowers the Federal Government to
regulate marriage, littering, or cruelty to animals, throughout
the 50 States. Our Constitution quite properly leaves such
matters to the individual States, notwithstanding these
activities' effects on interstate commerce. Any interpretation
of the Commerce Clause that even suggests that Congress could
regulate such matters is in need of reexamination.
In an appropriate case, I believe that we must further
reconsider our "substantial effects" test with an eye toward
constructing a standard that reflects the text and history of
the Commerce Clause without totally rejecting our more recent
Commerce Clause jurisprudence.
Today, however, I merely support the Court's conclusion
with a discussion of the text, structure, and history of the
Commerce Clause and an analysis of our early case law. My goal
is simply to show how far we have departed from the original
understanding and to demonstrate that the result we reach today
is by no means "radical," see post, at 1 (Stevens, J.,
dissenting). I also want to point out the necessity of
refashioning a coherent test that does not tend to "obliterate
the distinction between what is national and what is local and
create a completely centralized government." Jones & Laughlin
Steel Corp, supra, at 37.
I
At the time the original Constitution was ratified,
"commerce" consisted of selling, buying, and bartering, as well
as transporting for these purposes. See 1 S. Johnson, A
Dictionary of the English Language 361 (4th ed. 1773) (defining
commerce as "Intercour[s]e; exchange of one thing for another;
interchange of any thing; trade; traffick"); N. Bailey, An
Universal Etymological English Dictionary (26th ed. 1789)
("trade or traffic"); T. Sheridan, A Complete Dictionary of the
English Language (6th ed. 1796) ("Exchange of one thing for
another; trade, traffick"). This understanding finds support in
the etymology of the word, which literally means "with
merchandise." See 3 Oxford English Dictionary 552 (2d ed. 1989)
(com-"with"; merci-"merchandise"). In fact, when Federalists and
Anti-Federalists discussed the Commerce Clause during the
ratification period, they often used trade (in its
selling/bartering sense) and commerce interchangeably. See The
Federalist No. 4, p. 22 (J. Jay) (asserting that countries will
cultivate our friendship when our "trade" is prudently regulated
by Federal Government);[FOOTNOTE 5] id., No. 7, at 39-40 (A.
Hamilton) (discussing "competitions of commerce" between States
resulting from state "regulations of trade"); id., No. 40, at
262 (J. Madison) (asserting that it was an "acknowledged object
of the Convention . . . that the regulation of trade should be
submitted to the general government"); Lee, Letters of a Federal
Farmer No. 5, in Pamphlets on the Constitution of the United
States 319 (P. Ford ed. 1888); Smith, An Address to the People
of the State of New-York, in id., at 107.
As one would expect, the term "commerce" was used in
contradistinction to productive activities such as manufacturing
and agriculture. Alexander Hamilton, for example, repeatedly
treated commerce, agriculture, and manufacturing as three
separate endeavors. See, e.g., The Federalist No. 36, at 224
(referring to "agriculture, commerce, manufactures"); id., No.
21, at 133 (distinguishing commerce, arts, and industry); id.,
No. 12, at 74 (asserting that commerce and agriculture have
shared interests). The same distinctions were made in the state
ratification conventions. See e.g., 2 Debates in the Several
State Conventions on the Adoption of the Federal Constitution 57
(J. Elliot ed. 1836) (hereinafter Debates) (T. Dawes at
Massachusetts convention); id., at 336 (M. Smith at New York
convention).
Moreover, interjecting a modern sense of commerce into
the Constitution generates significant textual and structural
problems. For example, one cannot replace "commerce" with a
different type of enterprise, such as manufacturing. When a
manufacturer produces a car, assembly cannot take place "with a
foreign nation" or "with the Indian Tribes." Parts may come from
different States or other nations and hence may have been in the
flow of commerce at one time, but manufacturing takes place at a
discrete site. Agriculture and manufacturing involve the
production of goods; commerce encompasses traffic in such
articles.
The Port Preference Clause also suggests that the term
"commerce" denoted sale and/or transport rather than business
generally. According to that Clause, "[n]o Preference shall be
given by any Regulation of Commerce or Revenue to the Ports of
one State over those of another." U.S. Const., Art. I, 9, cl.
6. Although it is possible to conceive of regulations of
manufacturing or farming that prefer one port over another, the
more natural reading is that the Clause prohibits Congress from
using its commerce power to channel commerce through certain
favored ports.
The Constitution not only uses the word "commerce" in a
narrower sense than our case law might suggest, it also does not
support the proposition that Congress has authority over all
activities that "substantially affect" interstate commerce. The
Commerce Clause[FOOTNOTE 6] does not state that Congress may
"regulate matters that substantially affect commerce with
foreign Nations, and among the several States, and with the
Indian Tribes." In contrast, the Constitution itself temporarily
prohibited amendments that would "affect" Congress' lack of
authority to prohibit or restrict the slave trade or to enact
unproportioned direct taxation. U.S. Const., Art. V. Clearly,
the Framers could have drafted a Constitution that contained a
"substantially affects interstate commerce" clause had that been
their objective.
In addition to its powers under the Commerce Clause,
Congress has the authority to enact such laws as are "necessary
and proper" to carry into execution its power to regulate
commerce among the several States. U.S. Const., Art. I, 8, cl.
18. But on this Court's understanding of congressional power
under these two Clauses, many of Congress' other enumerated
powers under Art. I, 8 are wholly superfluous. After all, if
Congress may regulate all matters that substantially affect
commerce, there is no need for the Constitution to specify that
Congress may enact bankruptcy laws, cl. 4, or coin money and fix
the standard of weights and measures, cl. 5, or punish
counterfeiters of United States coin and securities, cl. 6.
Likewise, Congress would not need the separate authority to
establish post offices and post roads, cl. 7, or to grant
patents and copyrights, cl. 8, or to "punish Piracies and
Felonies committed on the high Seas," cl. 10. It might not even
need the power to raise and support an Army and Navy, cls. 12
and 13, for fewer people would engage in commercial shipping if
they thought that a foreign power could expropriate their
property with ease. Indeed, if Congress could regulate matters
that substantially affect interstate commerce, there would have
been no need to specify that Congress can regulate international
trade and commerce with the Indians. As the Framers surely
understood, these other branches of trade substantially affect
interstate commerce.
Put simply, much if not all of Art. I, 8 (including
portions of the Commerce Clause itself) would be surplusage if
Congress had been given authority over matters that
substantially affect interstate commerce. An interpretation of
cl. 3 that makes the rest of 8 superfluous simply cannot be
correct. Yet this Court's Commerce Clause jurisprudence has
endorsed just such an interpretation: the power we have accorded
Congress has swallowed Art. I, 8.[FOOTNOTE 7]
Indeed, if a "substantial effects" test can be appended
to the Commerce Clause, why not to every other power of the
Federal Government? There is no reason for singling out the
Commerce Clause for special treatment. Accordingly, Congress
could regulate all matters that "substantially affect" the Army
and Navy, bankruptcies, tax collection, expenditures, and so on.
In that case, the clauses of 8 all mutually overlap, something
we can assume the Founding Fathers never intended.
Our construction of the scope of congressional authority
has the additional problem of coming close to turning the Tenth
Amendment on its head. Our case law could be read to reserve to
the United States all powers not expressly prohibited by the
Constitution. Taken together, these fundamental textual problems
should, at the very least, convince us that the "substantial
effects" test should be reexamined.
II
The exchanges during the ratification campaign reveal the
relatively limited reach of the Commerce Clause and of federal
power generally. The Founding Fathers confirmed that most areas
of life (even many matters that would have substantial effects
on commerce) would remain outside the reach of the Federal
Government. Such affairs would continue to be under the
exclusive control of the States.
Early Americans understood that commerce, manufacturing,
and agriculture, while distinct activities, were intimately
related and dependent on each other-that each "substantially
affected" the others. After all, items produced by farmers and
manufacturers were the primary articles of commerce at the time.
If commerce was more robust as a result of federal
superintendence, farmers and manufacturers could benefit. Thus,
Oliver Ellsworth of Connecticut attempted to convince farmers of
the benefits of regulating commerce. "Your property and riches
depend on a ready demand and generous price for the produce you
can annually spare," he wrote, and these conditions exist "where
trade flourishes and when the merchant can freely export the
produce of the country" to nations that will pay the highest
price. A Landholder No. 1, Connecticut Courant, Nov. 5, 1787, in
3 Documentary History of the Ratification of the Constitution
399 (M. Jensen ed. 1978) (hereinafter Documentary History). See
also The Federalist No. 35, at 219 (A. Hamilton) ("[D]iscerning
citizens are well aware that the mechanic and manufacturing arts
furnish the materials of mercantile enterprise and industry.
Many of them indeed are immediately connected with the
operations of commerce. They know that the merchant is their
natural patron and friend"); id., at 221 ("Will not the merchant
mechanic and manufacturing arts to which his commerce is so
nearly allied?"); A Jerseyman: To the Citizens of New Jersey,
Trenton Mercury, Nov. 6, 1787, in 3 Documentary History 147
(noting that agriculture will serve as a "source of commerce");
Marcus, The New Jersey Journal, Nov. 14, 1787, id., at 152 (both
the mechanic and the farmer benefit from the prosperity of
commerce). William Davie, a delegate to the North Carolina
Convention, illustrated the close link best: "Commerce, sir, is
the nurse of [agriculture and manufacturing]. The merchant
furnishes the planter with such articles as he cannot
manufacture himself, and finds him a market for his produce.
Agriculture cannot flourish if commerce languishes; they are
mutually dependent on each other." 4 Debates 20.
Yet, despite being well aware that agriculture,
manufacturing, and other matters substantially affected
commerce, the founding generation did not cede authority over
all these activities to Congress. Hamilton, for instance,
acknowledged that the Federal Government could not regulate
agriculture and like concerns:
"The administration of private justice between the
citizens of the same State, the supervision of agriculture and
of other concerns of a similar nature, all those things in short
which are proper to be provided for by local legislation, can
never be desirable cares of a general jurisdiction." The
Federalist No. 17, at 106.
In the unlikely event that the Federal Government would
attempt to exercise authority over such matters, its effort
"would be as troublesome as it would be nugatory."
Ibid.[FOOTNOTE 8]
The comments of Hamilton and others about federal power
reflected the well-known truth that the new Government would
have only the limited and enumerated powers found in the
Constitution. See, e.g., 2 Debates 267-268 (A. Hamilton at New
York convention) (noting that there would be just cause for
rejecting the Constitution if it would enable the Federal
Government to "alter, or abrogate . . . [a state's] civil and
criminal institutions [or] penetrate the recesses of domestic
life, and control, in all respects, the private conduct of
individuals"); The Federalist No. 45, at 313 (J. Madison); 3
Debates 259 (J. Madison) (Virginia convention); R. Sherman & O.
Ellsworth, Letter to Governor Huntington, Sept. 26, 1787, in 3
Documentary History 352; J. Wilson, Speech in the State House
Yard, Oct. 6, 1787, in 2 id., at 167-168. Agriculture and
manufacture, since they were not surrendered to the Federal
Government, were state concerns. See The Federalist No. 34, at
212-213 (A. Hamilton) (observing that the "internal
encouragement of agriculture and manufactures" was an object of
state expenditure). Even before the passage of the Tenth
Amendment, it was apparent that Congress would possess only
those powers "herein granted" by the rest of the Constitution.
U.S. Const., Art. I, 1.
Where the Constitution was meant to grant federal
authority over an activity substantially affecting interstate
commerce, the Constitution contains an enumerated power over
that particular activity. Indeed, the Framers knew that many of
the other enumerated powers in 8 dealt with matters that
substantially affected interstate commerce. Madison, for
instance, spoke of the bankruptcy power as being "intimately
connected with the regulation of commerce." The Federalist No.
42, at 287. Likewise, Hamilton urged that "[i]f we mean to be a
commercial people or even to be secure on our Atlantic side, we
must endeavour as soon as possible to have a navy." Id., No. 24,
at 157 (A. Hamilton).
In short, the Founding Fathers were well aware of what
the principal dissent calls "'economic . . . realities.'" See
post, at 11-12 (Breyer, J.) (citing North American Co. v. SEC,
327 U.S. 686, 705 (1946)). Even though the boundary between
commerce and other matters may ignore "economic reality" and
thus seem arbitrary or artificial to some, we must nevertheless
respect a constitutional line that does not grant Congress power
over all that substantially affects interstate commerce.
III
If the principal dissent's understanding of our early
case law were correct, there might be some reason to doubt this
view of the original understanding of the Constitution.
According to that dissent, Chief Justice Marshall's opinion in
Gibbons v. Ogden, 9 Wheat. 1 (1824) established that Congress
may control all local activities that "significantly affect
interstate commerce," post, at 1. And, "with the exception of
one wrong turn subsequently corrected," this has been the
"traditiona[l]" method of interpreting the Commerce Clause.
Post, at 18 (citing Gibbons and United States v. Darby, 312 U.S.
100, 116-117 (1941)).
In my view, the dissent is wrong about the holding and
reasoning of Gibbons. Because this error leads the dissent to
characterize the first 150 years of this Court's case law as a
"wrong turn," I feel compelled to put the last 50 years in
proper perspective.
A
In Gibbons, the Court examined whether a federal law that
licensed ships to engage in the "coasting trade" pre-empted a
New York law granting a 30-year monopoly to Robert Livingston
and Robert Fulton to navigate the State's waterways by
steamship. In concluding that it did, the Court noted that
Congress could regulate "navigation" because "[a]ll America . .
navigation. It was so understood, and must have been so
understood, when the constitution was framed." 9 Wheat., at 190.
The Court also observed that federal power over commerce "among
the several States" meant that Congress could regulate commerce
conducted partly within a State. Because a portion of interstate
commerce and foreign commerce would almost always take place
within one or more States, federal power over interstate and
foreign commerce necessarily would extend into the States. Id.,
at 194-196.
At the same time, the Court took great pains to make
clear that Congress could not regulate commerce "which is
completely internal, which is carried on between man and man in
a State, or between different parts of the same State, and which
does not extend to or affect other States." Id., at 194.
Moreover, while suggesting that the Constitution might not
permit States to regulate interstate or foreign commerce, the
Court observed that "[i]nspection laws, quarantine laws, health
laws of every description, as well as laws for regulating the
internal commerce of a State" were but a small part "of that
immense mass of legislation . . . not surrendered to a general
government." Id., at 203. From an early moment, the Court
rejected the notion that Congress can regulate everything that
affects interstate commerce. That the internal commerce of the
States and the numerous state inspection, quarantine, and health
laws had substantial effects on interstate commerce cannot be
doubted. Nevertheless, they were not "surrendered to the general
government."
Of course, the principal dissent is not the first to
misconstrue Gibbons. For instance, the Court has stated that
Gibbons "described the federal commerce power with a breadth
never yet exceeded." Wickard v. Filburn, 317 U.S. 111, 120
(1942). See also Perez v. United States, 402 U.S. 146, 151
(1971) (claiming that with Darby and Wickard, "the broader view
of the Commerce Clause announced by Chief Justice Marshall had
been restored"). I believe that this misreading stems from two
statements in Gibbons.
First, the Court made the uncontroversial claim that
federal power does not encompass "commerce" that "does not
extend to or affect other States." 9 Wheat., at 194 (emphasis
added). From this statement, the principal dissent infers that
whenever an activity affects interstate commerce, it necessarily
follows that Congress can regulate such activities. Of course,
Chief Justice Marshall said no such thing and the inference the
dissent makes cannot be drawn.
There is a much better interpretation of the "affect[s]"
language: because the Court had earlier noted that the commerce
power did not extend to wholly intrastate commerce, the Court
was acknowledging that although the line between intrastate and
interstate/foreign commerce would be difficult to draw, federal
authority could not be construed to cover purely intrastate
commerce. Commerce that did not affect another State could never
be said to be commerce "among the several States."
But even if one were to adopt the dissent's reading, the
"affect[s]" language, at most, permits Congress to regulate only
intrastate commerce that substantially affects interstate and
foreign commerce. There is no reason to believe that Chief
Justice Marshall was asserting that Congress could regulate all
activities that affect interstate commerce. See Ibid.
The second source of confusion stems from the Court's
praise for the Constitution's division of power between the
States and the Federal Government:
"The genius and character of the whole government seem to
be, that its action is to be applied to all the external
concerns of the nation, and to those internal concerns which
affect the States generally; but not to those which are
completely within a particular 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 the
government." Id., at 195.
In this passage, the Court merely was making the well
understood point that the Constitution commits matters of
"national" concern to Congress and leaves "local" matters to the
States. The Court was not saying that whatever Congress believes
is a national matter becomes an object of federal control. The
matters of national concern are enumerated in the Constitution:
war, taxes, patents, and copyrights, uniform rules of
naturalization and bankruptcy, types of commerce, and so on. See
generally U.S. Const., Art. I, 8. Gibbons' emphatic statements
that Congress could not regulate many matters that affect
commerce confirm that the Court did not read the Commerce Clause
as granting Congress control over matters that "affect the
States generally."[FOOTNOTE 9] Gibbons simply cannot be
construed as the principal dissent would have it.
B
I am aware of no cases prior to the New Deal that
characterized the power flowing from the Commerce Clause as
sweepingly as does our substantial effects test. My review of
the case law indicates that the substantial effects test is but
an innovation of the 20th century.
Even before Gibbons, Chief Justice Marshall, writing for
the Court in Cohens v. Virginia, 6 Wheat. 264 (1821), noted that
Congress had "no general right to punish murder committed within
any of the States," id., at 426, and that it was "clear that
congress cannot punish felonies generally," id., at 428. The
Court's only qualification was that Congress could enact such
laws for places where it enjoyed plenary powers-for instance,
over the District of Columbia. Id., at 426. Thus, whatever
effect ordinary murders, or robbery, or gun possession might
have on interstate commerce (or on any other subject of federal
concern) was irrelevant to the question of congressional
power.[FOOTNOTE 10]
United States v. Dewitt, 9 Wall. 41 (1870), marked the
first time the Court struck down a federal law as exceeding the
power conveyed by the Commerce Clause. In a two-page opinion,
the Court invalidated a nationwide law prohibiting all sales of
naphtha and illuminating oils. In so doing, the Court remarked
that the Commerce Clause "has always been understood as limited
by its terms; and as a virtual denial of any power to interfere
with the internal trade and business of the separate States."
Id., at 44. The law in question was "plainly a regulation of
police," which could have constitutional application only where
Congress had exclusive authority, such as the territories. Id.,
at 44-45. See also License Tax Cases, 5 Wall. 462, 470-471
(1867) (Congress cannot interfere with the internal commerce and
business of a State); Trade-Mark Cases, 100 U.S. 82 (1879)
(Congress cannot regulate internal com-merce and thus may not
establish national trademark registration).
In United States v. E. C. Knight Co., 156 U.S. 1 (1895),
this Court held that mere attempts to monopolize the manufacture
of sugar could not be regulated pursuant to the Commerce Clause.
Raising echoes of the discussions of the Framers regarding the
intimate relationship between commerce and manufacturing, the
Court declared that "[c]ommerce succeeds to manufacture, and is
not a part of it." Id., at 12. The Court also approvingly quoted
from Kidd v. Pearson, 128 U.S. 1, 20 (1888):
"'No distinction is more popular to the common mind, or
more clearly expressed in economic and political literature,
than that between manufacture and commerce . . . . If it be held
that the term [commerce] includes the regulation of all such
manufactures as are intended to be the subject of commercial
transactions in the future, it is impossible to deny that it
would also include all productive industries that contemplate
the same thing. The result would be that Congress would be
invested . . . with the power to regulate, not only
manufactures, but also agriculture, horticulture, stock raising,
domestic fisheries, mining-in short, every branch of human
industry.'" E. C. Knight, 156 U.S., at 14.
If federal power extended to these types of production
"comparatively little of business operations and affairs would
be left for state control." Id., at 16. See also Newberry v.
United States, 256 U.S. 232, 257 (1921) ("It is settled . . .
that the power to regulate interstate and foreign commerce does
not reach whatever is essential thereto. Without agriculture,
manufacturing, mining, etc., commerce could not exist, but this
fact does not suffice to subject them to the control of
Congress"). Whether or not manufacturing, agriculture, or other
matters substantially affected interstate commerce was
irrelevant.
As recently as 1936, the Court continued to insist that
the Commerce Clause did not reach the wholly internal business
of the States. See Carter v. Carter Coal Co., 298 U.S. 238, 308
(1936) (Congress may not regulate mine labor because "[t]he
relation of employer and employee is a local relation"); see
also A. L. A. Schechter Poultry Corp. v. United States, 295 U.S.
495, 543-550 (1935) (holding that Congress may not regulate
intrastate sales of sick chickens or the labor of employees
involved in intrastate poultry sales). The Federal Government
simply could not reach such subjects regardless of their effects
on interstate commerce.
These cases all establish a simple point: from the time
of the ratification of the Constitution to the mid-1930's, it
was widely understood that the Constitution granted Congress
only limited powers, notwithstanding the Commerce
Clause.[FOOTNOTE 11] Moreover, there was no question that
activities wholly separated from business, such as gun
possession, were beyond the reach of the commerce power. If
anything, the "wrong turn" was the Court's dramatic departure in
the 1930's from a century and a half of precedent.
IV
Apart from its recent vintage and its corresponding lack
of any grounding in the original understanding of the
Constitution, the substantial effects test suffers from the
further flaw that it appears to grant Congress a police power
over the Nation. When asked at oral argument if there were any
limits to the Commerce Clause, the Government was at a loss for
words. Tr. of Oral Arg. 5. Likewise, the principal dissent
insists that there are limits, but it cannot muster even one
example. Post, at 10-11. Indeed, the dissent implicitly concedes
that its reading has no limits when it criticizes the Court for
"threaten[ing] legal uncertainty in an area of law that . . .
seemed reasonably well settled." Post, at 17-18. The one
advantage of the dissent's standard is certainty: it is certain
that under its analysis everything may be regulated under the
guise of the Commerce Clause.
The substantial effects test suffers from this flaw, in
part, because of its "aggregation principle." Under so-called
"class of activities" statutes, Congress can regulate whole
categories of activities that are not themselves either
"interstate" or "commerce." In applying the effects test, we ask
whether the class of activities as a whole substantially affects
interstate commerce, not whether any specific activity within
the class has such effects when considered in isolation. See
Maryland v. Wirtz, 392 U.S., at 192-193 (if class of activities
is "'within the reach of federal power,'" courts may not excise
individual applications as trivial) (quoting Darby, 312 U.S., at
120-121).
The aggregation principle is clever, but has no stopping
point. Suppose all would agree that gun possession within 1,000
feet of a school does not substantially affect commerce, but
that possession of weapons generally (knives, brass knuckles,
nunchakus, etc.) does. Under our substantial effects doctrine,
even though Congress cannot single out gun possession, it can
prohibit weapon possession generally. But one always can draw
the circle broadly enough to cover an activity that, when taken
in isolation, would not have substantial effects on commerce.
Under our jurisprudence, if Congress passed an omnibus
"substantially affects interstate commerce" statute, purporting
to regulate every aspect of human existence, the Act apparently
would be constitutional. Even though particular sections may
govern only trivial activities, the statute in the aggregate
regulates matters that substantially affect commerce.
V
This extended discussion of the original understanding
and our first century and a half of case law does not
necessarily require a wholesale abandonment of our more recent
opinions.[FOOTNOTE 12] It simply reveals that our substantial
effects test is far removed from both the Constitution and from
our early case law and that the Court's opinion should not be
viewed as "radical" or another "wrong turn" that must be
corrected in the future.[FOOTNOTE 13] The analysis also suggests
that we ought to temper our Commerce Clause jurisprudence.
Unless the dissenting Justices are willing to repudiate
our long-held understanding of the limited nature of federal
power, I would think that they too must be willing to reconsider
the substantial effects test in a future case. If we wish to be
true to a Constitution that does not cede a police power to the
Federal Government, our Commerce Clause's boundaries simply
cannot be "defined" as being "'commensurate with the national
needs'" or self-consciously intended to let the Federal
Government "'defend itself against economic forces that Congress
decrees inimical or destructive of the national economy.'" See
post, at 12-13 )Breyer, J., dissenting) (quoting North American
Co. v. SEC, 327 U.S. 686, 705 (1946)). Such a formulation of
federal power is no test at all: it is a blank check.
At an appropriate juncture, I think we must modify our
Commerce Clause jurisprudence. Today, it is easy enough to say
that the Clause certainly does not empower Congress to ban gun
possession within 1,000 feet of a school.
JUSTICE STEVENS, dissenting.
The welfare of our future "Commerce with foreign Nations,
and among the several States," U.S. Const., Art. I, 8, cl. 3,
is vitally dependent on the character of the education of our
children. I therefore agree entirely with Justice Breyer's
explanation of why Congress has ample power to prohibit the
possession of firearms in or near schools-just as it may protect
the school environment from harms posed by controlled substances
such as asbestos or alcohol. I also agree with Justice Souter's
exposition of the radical character of the Court's holding and
its kinship with the discredited, pre-Depression version of
substantive due process. Cf. Dolan v. Tigard, 512 U.S. ___, ___
(1994) (slip op., at 10-15) (Stevens, J., dissenting). I
believe, however, that the Court's extraordinary decision merits
this additional comment.
Guns are both articles of commerce and articles that can
be used to restrain commerce. Their possession is the
consequence, either directly or indirectly, of commercial
activity. In my judgment, Congress' power to regulate commerce
in firearms includes the power to prohibit possession of guns at
any location because of their potentially harmful use; it
necessarily follows that Congress may also prohibit their
possession in particular markets. The market for the possession
of handguns by school-age children is, distressingly,
substantial.[FOOTNOTE *] Whether or not the national interest in
eliminating that market would have justified federal legislation
in 1789, it surely does today.
JUSTICE SOUTER, dissenting.
In reviewing congressional legislation under the Commerce
Clause, we defer to what is often a merely implicit
congressional judgment that its regulation addresses a subject
substantially affecting interstate commerce "if there is any
rational basis for such a finding." Hodel v. Virginia Surface
Mining & Reclamation Assn., Inc., 452 U.S. 264, 276 (1981);
Preseault v. ICC, 494 U.S. 1, 17 (1990); see Maryland v. Wirtz,
392 U.S. 183, 190 (1968), quoting Katzenbach v. McClung, 379
U.S. 294, 303-304 (1964). If that congressional determination is
within the realm of reason, "the only remaining question for
judicial inquiry is whether 'the means chosen by Congress [are]
reasonably adapted to the end permitted by the Constitution.'"
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,
supra, at 276, quoting Heart of Atlanta Motel, Inc. v. United
States, 379 U.S. 241, 262 (1964); see also Preseault v. ICC,
supra, at 17.[FOOTNOTE 14]
The practice of deferring to rationally based legislative
judgments "is a paradigm of judicial restraint." FCC v. Beach
Communications, Inc., 508 U.S. ___, ___ (1993) (slip op., at 6).
In judicial review under the Commerce Clause, it reflects our
respect for the institutional competence of the Congress on a
subject expressly assigned to it by the Constitution and our
appreciation of the legitimacy that comes from Congress's
political accountability in dealing with matters open to a wide
range of possible choices. See id., at ___ (slip op., at 5-8);
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,
supra, at 276; United States v. Carolene Products Co., 304 U.S.
144, 147, 151-154 (1938); cf. Williamson v. Lee Optical of
Okla., Inc., 348 U.S. 483, 488 (1955).
It was not ever thus, however, as even a brief overview
of Commerce Clause history during the past century reminds us.
The modern respect for the competence and primacy of Congress in
matters affecting commerce developed only after one of this
Court's most chastening experiences, when it perforce repudiated
an earlier and untenably expansive conception of judicial review
in derogation of congressional commerce power. A look at
history's sequence will serve to show how today's decision tugs
the Court off course, leading it to suggest opportunities for
further developments that would be at odds with the rule of
restraint to which the Court still wisely states adherence.
I
Notwithstanding the Court's recognition of a broad
commerce power in Gibbons v. Ogden, 9 Wheat. 1, 196-197 (1824)
(Marshall, C. J.), Congress saw few occasions to exercise that
power prior to Reconstruction, see generally 2 C. Warren, The
Supreme Court in United States History 729-739 (rev. ed. 1935),
and it was really the passage of the Interstate Commerce Act of
1887 that opened a new age of congressional reliance on the
Commerce Clause for authority to exercise general police powers
at the national level, see id., at 729-730. Although the Court
upheld a fair amount of the ensuing legislation as being within
the commerce power, see, e.g., Stafford v. Wallace, 258 U.S. 495
(1922) (upholding an Act regulating trade practices in the meat
packing industry); The Shreveport Rate Cases, 234 U.S. 342
(1914) (upholding ICC order to equalize inter- and intrastate
rail rates); see generally Warren, supra, at 729-739, the period
from the turn of the century to 1937 is better noted for a
series of cases applying highly formalistic notions of
"commerce" to invalidate federal social and economic
legislation, see, e.g., Carter v. Carter Coal Co., 298 U.S. 238,
303-304 (1936) (striking Act prohibiting unfair labor practices
in coal industry as regulation of "mining" and "production," not
"commerce"); A. L. A. Schechter Poultry Corp. v. United States,
295 U.S. 495, 545-548 (1935) (striking congressional regulation
of activities affecting interstate commerce only "indirectly");
Hammer v. Dagenhart, 247 U.S. 251 (1918) (striking Act
prohibiting shipment in interstate commerce of goods
manufactured at factories using child labor because the Act
regulated "manufacturing," not "commerce"); Adair v. United
States, 208 U.S. 161 (1908) (striking protection of labor union
membership as outside "commerce").
These restrictive views of commerce subject to
congressional power complemented the Court's activism in
limiting the enforceable scope of state economic regulation. It
is most familiar history that during this same period the Court
routinely invalidated state social and economic legislation
under an expansive conception of Fourteenth Amendment
substantive due process. See, e.g., Louis K. Liggett Co. v.
Baldridge, 278 U.S. 105 (1928) (striking state law requiring
pharmacy owners to be licensed as pharmacists); Coppage v.
Kansas, 236 U.S. 1 (1915) (striking state law prohibiting
employers from requiring their employees to agree not to join
labor organizations); Lochner v. New York, 198 U.S. 45 (1905)
(striking state law establishing maximum working hours for
bakers). See generally L. Tribe, American Constitutional Law
568-574 (2d ed. 1988). The fulcrums of judicial review in these
cases were the notions of liberty and property characteristic of
laissez-faire economics, whereas the Commerce Clause cases
turned on what was ostensibly a structural limit of federal
power, but under each conception of judicial review the Court's
character for the first third of the century showed itself in
exacting judicial scrutiny of a legislature's choice of economic
ends and of the legislative means selected to reach them.
It was not merely coincidental, then, that sea changes in
the Court's conceptions of its authority under the Due Process
and Commerce Clauses occurred virtually together, in 1937, with
West Coast Hotel Co. v. Parrish, 300 U.S. 379 and NLRB v. Jones
& Laughlin Steel Corp., 301 U.S. 1. See Stern, The Commerce
Clause and the National Economy, 1933-1946, 59 Harv. L. Rev.
645, 674-682 (1946). In West Coast Hotel, the Court's rejection
of a due process challenge to a state law fixing minimum wages
for women and children marked the abandonment of its expansive
protection of contractual freedom. Two weeks later, Jones &
Laughlin affirmed congressional commerce power to authorize NLRB
injunctions against unfair labor practices. The Court's finding
that the regulated activity had a direct enough effect on
commerce has since been seen as beginning the abandonment, for
practical purposes, of the formalistic distinction between
direct and indirect effects.
In the years following these decisions, deference to
legislative policy judgments on commercial regulation became the
powerful theme under both the Due Process and Commerce Clauses,
see United States v. Carolene Products Co., 304 U.S., at 147
-148, 152; United States v. Darby, 312 U.S. 100, 119-121 (1941);
United States v. Wrightwood Dairy Co., 315 U.S. 110, 118-119
(1942), and in due course that deference became articulate in
the standard of rationality review. In due process litigation,
the Court's statement of a rational basis test came quickly. See
United States v. Carolene Products Co., supra, at 152; see also
Williamson v. Lee Optical Co., 348 U.S., at 489-490. The
parallel formulation of the Commerce Clause test came later,
only because complete elimination of the direct/indirect effects
dichotomy and acceptance of the cumulative effects doctrine,
Wickard v. Filburn, 317 U.S. 111, 125, 127-129 (1942); United
States v. Wrightwood Dairy Co., supra, at 124-126, so far
settled the pressing issues of congressional power over commerce
as to leave the Court for years without any need to phrase a
test explicitly deferring to rational legislative judgments. The
moment came, however, with the challenge to congressional
Commerce Clause authority to prohibit racial discrimination in
places of public accommodation, when the Court simply made
explicit what the earlier cases had implied: "where we find that
the legislators, in light of the facts and testimony before
them, have a rational basis for finding a chosen regulatory
scheme necessary to the protection of commerce, our
investigation is at an end." Katzenbach v. McClung, 379 U.S.
294, 303-304 (1964), discussing United States v. Darby, supra;
see Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241,
258-259 (1964). Thus, under commerce, as under due process,
adoption of rational basis review expressed the recognition that
the Court had no sustainable basis for subjecting economic
regulation as such to judicial policy judgments, and for the
past half-century the Court has no more turned back in the
direction of formalistic Commerce Clause review (as in deciding
whether regulation of commerce was sufficiently direct) than it
has inclined toward reasserting the substantive authority of
Lochner due process (as in the inflated protection of
contractual autonomy). See, e.g., Maryland v. Wirtz, 392 U.S.,
at 190, 198; Perez v. United States, 402 U.S. 146, 151-157
(1971); Hodel v. Virginia Surface Mining & Reclamation Assn.,
Inc., 452 U.S., at 276, 277.
II
There is today, however, a backward glance at both the
old pitfalls, as the Court treats deference under the
rationality rule as subject to gradation according to the
commercial or noncommercial nature of the immediate subject of
the challenged regulation. See ante, at 10-13. The distinction
between what is patently commercial and what is not looks much
like the old distinction between what directly affects commerce
and what touches it only indirectly. And the act of calibrating
the level of deference by drawing a line between what is
patently commercial and what is less purely so will probably
resemble the process of deciding how much interference with
contractual freedom was fatal. Thus, it seems fair to ask
whether the step taken by the Court today does anything but
portend a return to the untenable jurisprudence from which the
Court extricated itself almost 60 years ago. The answer is not
reassuring. To be sure, the occasion for today's decision
reflects the century's end, not its beginning. But if it seems
anomalous that the Congress of the United States has taken to
regulating school yards, the act in question is still probably
no more remarkable than state regulation of bake shops 90 years
ago. In any event, there is no reason to hope that the Court's
qualification of rational basis review will be any more
successful than the efforts at substantive economic review made
by our predecessors as the century began. Taking the Court's
opinion on its own terms, Justice Breyer has explained both the
hopeless porosity of "commercial" character as a ground of
Commerce Clause distinction in America's highly connected
economy, and the inconsistency of this categorization with our
rational basis precedents from the last 50 years.
Further glosses on rationality review, moreover, may be
in the offing. Although this case turns on commercial character,
the Court gestures toward two other considerations that it might
sometime entertain in applying rational basis scrutiny (apart
from a statutory obligation to supply independent proof of a
jurisdictional element): does the congressional statute deal
with subjects of traditional state regulation, and does the
statute contain explicit factual findings supporting the
otherwise implicit determination that the regulated activity
substantially affects interstate commerce? Once again, any
appeal these considerations may have depends on ignoring the
painful lesson learned in 1937, for neither of the Court's
suggestions would square with rational basis scrutiny.
A
The Court observes that the Gun-Free School Zones Act
operates in two areas traditionally subject to legislation by
the States, education and enforcement of criminal law. The
suggestion is either that a connection between commerce and
these subjects is remote, or that the commerce power is simply
weaker when it touches subjects on which the States have
historically been the primary legislators. Neither suggestion is
tenable. As for remoteness, it may or may not be wise for the
National Government to deal with education, but Justice Breyer
has surely demonstrated that the commercial prospects of an
illiterate State or Nation are not rosy, and no argument should
be needed to show that hijacking interstate shipments of
cigarettes can affect commerce substantially, even though the
States have traditionally prosecuted robbery. And as for the
notion that the commerce power diminishes the closer it gets to
customary state concerns, that idea has been flatly rejected,
and not long ago. The commerce power, we have often observed, is
plenary. Hodel v. Virginia Surface Mining & Reclamation Assn.,
Inc., 312 U.S., at 276; United States v. Darby, supra, at 114;
see Garcia v. San Antonio Metropolitan Transit Authority, 469
U.S. 528, 549-550 (1985); Gibbons v. Ogden, 9 Wheat., at 196
-197. Justice Harlan put it this way in speaking for the Court in
Maryland v. Wirtz:
"There is no general doctrine implied in the Federal
Constitution that the two governments, national and state, are
each to exercise its powers so as not to interfere with the free
and full exercise of the powers of the other. . . . [I]t is
clear that the Federal Government, when acting within a
delegated power, may override countervailing state interests . .
that state concerns might constitutionally 'outweigh' the
importance of an otherwise valid federal statute regulating
commerce." 392 U.S., at 195-196 (citations and internal
quotation marks omitted).
See also United States v. Darby, supra, at 114; Gregory
v. Ashcroft, 501 U.S. 452, 460 (1991); United States v. Carolene
Products Co., 304 U.S., at 147.
Nor is there any contrary authority in the reasoning of
our cases imposing clear statement rules in some instances of
legislation that would significantly alter the state-national
balance. In the absence of a clear statement of congressional
design, for example, we have refused to interpret ambiguous
federal statutes to limit fundamental state legislative
prerogatives, Gregory v. Ashcroft, supra, at 460-464, our
understanding being that such prerogatives, through which "a
State defines itself as a sovereign," are "powers with which
Congress does not readily interfere," 501 U.S., at 460, 461.
Likewise, when faced with two plausible interpretations of a
federal criminal statute, we generally will take the alternative
that does not force us to impute an intention to Congress to use
its full commerce power to regulate conduct traditionally and
ably regulated by the States. See United States v. Enmons, 410
U.S. 396, 411-412 (1973); United States v. Bass, 404 U.S. 336,
349-350 (1971); Rewis v. United States, 401 U.S. 808, 812
(1971).
These clear statement rules, however, are merely rules of
statutory interpretation, to be relied upon only when the terms
of a statute allow, United States v. Culbert, 435 U.S. 371, 379
-380 (1978); see Gregory v. Ashcroft, supra, at 470; United
States v. Bass, supra, at 346-347, and in cases implicating
Congress's historical reluctance to trench on state legislative
prerogatives or to enter into spheres already occupied by the
States, Gregory v. Ashcroft, supra, at 461; United States v.
Bass, supra, at 349; see Rewis v. United States, supra, at 811
-812. They are rules for determining intent when legislation
leaves intent subject to question. But our hesitance to presume
that Congress has acted to alter the state-federal status quo
(when presented with a plausible alternative) has no relevance
whatever to the enquiry whether it has the commerce power to do
so or to the standard of judicial review when Congress has
definitely meant to exercise that power. Indeed, to allow our
hesitance to affect the standard of review would inevitably
degenerate into the sort of substantive policy review that the
Court found indefensible 60 years ago. The Court does not assert
(and could not plausibly maintain) that the commerce power is
wholly devoid of congressional authority to speak on any subject
of traditional state concern; but if congressional action is not
forbidden absolutely when it touches such a subject, it will
stand or fall depending on the Court's view of the strength of
the legislation's commercial justification. And here once again
history raises its objections that the Court's previous essays
in overriding congressional policy choices under the Commerce
Clause were ultimately seen to suffer two fatal weaknesses: when
dealing with Acts of Congress (as distinct from state
legislation subject to review under the theory of dormant
commerce power) nothing in the Clause compelled the judicial
activism, and nothing about the judiciary as an institution made
it a superior source of policy on the subject Congress dealt
with. There is no reason to expect the lesson would be different
another time.
B
There remain questions about legislative findings. The
Court of Appeals expressed the view, 2 F.3d 1342, 1363-1368
(1993), that the result in this case might well have been
different if Congress had made explicit findings that guns in
schools have a substantial effect on interstate commerce, and
the Court today does not repudiate that position, see ante, at
13-14. Might a court aided by such findings have subjected this
legislation to less exacting scrutiny (or, put another way,
should a court have deferred to such findings if Congress had
made them)?[FOOTNOTE 15] The answer to either question must be
no, although as a general matter findings are important and to
be hoped for in the difficult cases.
It is only natural to look for help with a hard job, and
reviewing a claim that Congress has exceeded the commerce power
is much harder in some cases than in others. A challenge to
congressional regulation of interstate garbage hauling would be
easy to resolve; review of congressional regulation of gun
possession in school yards is more difficult, both because the
link to interstate commerce is less obvious and because of our
initial ignorance of the relevant facts. In a case comparable to
this one, we may have to dig hard to make a responsible judgment
about what Congress could reasonably find, because the case may
be close, and because judges tend not to be familiar with the
facts that may or may not make it close. But while the ease of
re-view may vary from case to case, it does not follow that the
standard of review should vary, much less that explicit findings
of fact would even directly address the standard.
The question for the courts, as all agree, is not whether
as a predicate to legislation Congress in fact found that a
particular activity substantially affects interstate commerce.
The legislation implies such a finding, and there is no reason
to entertain claims that Congress acted ultra vires
intentionally. Nor is the question whether Congress was correct
in so finding. The only question is whether the legislative
judgment is within the realm of reason. See Hodel v. Virginia
Surface Mining & Reclamation Assn., Inc., 452 U.S., at 276-277;
Katzenbach v. McClung, 379 U.S., at 303-304; Railroad Retirement
Bd. v. Alton R. Co., 295 U.S. 330, 391-392 (1935) (Hughes, C.
J., dissenting); cf. FCC v. Beach Communications, 508 U.S., at
___ (slip op., at 7) (in the equal protection context, "those
attacking the rationality of the legislative classification have
the burden to negative every conceivable basis which might
support it; . . . it is entirely irrelevant for constitutional
purposes whether the conceived reason for the challenged
distinction actually motivated the legislature") (citations and
internal quotation marks omitted); Ferguson v. Skrupa, 372 U.S.
726, 731-733 (1963); Williamson v. Lee Optical Co., 348 U.S., at
487. Congressional findings do not, however, directly address
the question of reasonableness; they tell us what Congress
actually has found, not what it could rationally find. If,
indeed, the Court were to make the existence of explicit
congressional findings dispositive in some close or difficult
cases something other than rationality review would be afoot.
The resulting congressional obligation to justify its policy
choices on the merits would imply either a judicial authority to
review the justification (and, hence, the wisdom) of those
choices, or authority to require Congress to act with some high
degree of deliberateness, of which express findings would be
evidence. But review for congressional wisdom would just be the
old judicial pretension discredited and abandoned in 1937, and
review for deliberateness would be as patently unconstitutional
as an Act of Congress mandating long opinions from this Court.
Such a legislative process requirement would function merely as
an excuse for covert review of the merits of legislation under
standards never expressed and more or less arbitrarily applied.
Under such a regime, in any case, the rationality standard of
review would be a thing of the past.
On the other hand, to say that courts applying the
rationality standard may not defer to findings is not, of
course, to say that findings are pointless. They may, in fact,
have great value in telling courts what to look for, in
establishing at least one frame of reference for review, and in
citing to factual authority. The research underlying Justice
Breyer's dissent was necessarily a major undertaking; help is
welcome, and it not incidentally shrinks the risk that judicial
research will miss material scattered across the public domain
or buried under pounds of legislative record. Congressional
findings on a more particular plane than this record illustrates
would accordingly have earned judicial thanks. But thanks do not
carry the day as long as rational possibility is the touchstone,
and I would not allow for the possibility, as the Court's
opinion may, ante, at 14, that the addition of congressional
findings could in principle have affected the fate of the
statute here.
III
Because Justice Breyer's opinion demonstrates beyond any
doubt that the Act in question passes the rationality review
that the Court continues to espouse, today's decision may be
seen as only a misstep, its reasoning and its suggestions not
quite in gear with the prevailing standard, but hardly an
epochal case. I would not argue otherwise, but I would raise a
caveat. Not every epochal case has come in epochal trappings.
Jones & Laughlin did not reject the direct-indirect standard in
so many words; it just said the relation of the regulated
subject matter to commerce was direct enough. 301 U.S., at 41
-43. But we know what happened.
I respectfully dissent.
JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE
SOUTER, and JUSTICE GINSBURG join, dissenting.
The issue in this case is whether the Commerce Clause
authorizes Congress to enact a statute that makes it a crime to
possess a gun in, or near, a school. 18 U.S.C. 922(q)(1)(A)
(1988 ed., Supp. V). In my view, the statute falls well within
the scope of the commerce power as this Court has understood
that power over the last half-century.
I
In reaching this conclusion, I apply three basic
principles of Commerce Clause interpretation. First, the power
to "regulate Commerce . . . among the several States," U.S.
Const., Art. I, 8, cl. 3, encompasses the power to regulate
local activities insofar as they significantly affect interstate
commerce. See, e.g., Gibbons v. Ogden, 9 Wheat. 1, 194-195
(1824) (Marshall, C. J.); Wickard v. Filburn, 317 U.S. 111, 125
(1942). As the majority points out, ante, at 10, the Court, in
describing how much of an effect the Clause requires, sometimes
has used the word "substantial" and sometimes has not. Compare,
e.g., Wickard, supra, at 125 ("substantial economic effect"),
with Hodel v. Virginia Surface Mining and Reclamation Assn.,
Inc., 452 U.S. 264, 276 (1981) ("affects interstate commerce");
see also Maryland v. Wirtz, 392 U.S. 183, 196, n. 27 (1968)
(cumulative effect must not be "trivial"); NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1, 37 (1937) (speaking of "close
and substantial relation" between activity and commerce, not of
"substantial effect") (emphasis added); Gibbons, supra, at 194
(words of Commerce Clause do not "comprehend . . . commerce,
which is completely internal . . . and which does not . . .
affect other States"). And, as the majority also recognizes in
quoting Justice Car |
