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 . . . among
the several States . . . ."
On March 10, 1992, respondent, who was then a
12th-grade student, arrived at
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
We start with first principles. The Constitution
creates a Federal Government of enumerated powers. See
The Constitution delegates to Congress the power
"[t]o regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes."
"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."
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
"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."
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). [ UNITED STATES v. LOPEZ, ___
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,
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
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.
"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
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 [ UNITED STATES
v. LOPEZ, ___
"[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
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
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 [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 8] 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). 2
Consistent with this structure, we have identified
three broad categories of activity that Congress may regulate under its
commerce power. Perez v.
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 interstate commerce.
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, [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 11] 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
"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 [ UNITED STATES v. LOPEZ,
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. 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 [ UNITED STATES v. LOPEZ, ___
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
Although as part of our independent evaluation of
constitutionality under the Commerce Clause we of course consider legislative
findings, and indeed even [ UNITED STATES v. LOPEZ,
___ U.S. ___ (1995), 14] 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."
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 [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 15] 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.
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
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 [ UNITED STATES v. LOPEZ, ___
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 enumerated 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
"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 [ UNITED STATES v.
LOPEZ, ___ U.S. ___ (1995), 18] the extent of the powers actually
granted, is perpetually arising, and will probably continue to arise, as long
as our system shall exist."
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
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
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 [ UNITED STATES v. LOPEZ, ___
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
[ Footnote 1 ] The term "school zone" is defined as "in, or on the grounds of, a public, parochial or private school" or "within a distance of 1,000 feet from the grounds of a public, parochial or private school." 921(a)(25).
[ Footnote 2 ] See also Hodel, 452 U.S., at 311 ("[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so") (REHNQUIST, J., concurring in judgment); Heart of Atlanta Motel, 392 U.S., at 273 ("[W]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court") (Black, J., concurring).
[ Footnote 3 ] Under our federal system, the "`States
possess primary authority for defining and enforcing the criminal law.'"
Brecht v. Abrahamson, 507
[ Footnote 4 ] We note that on September 13, 1994, President
Clinton signed into law the Violent Crime Control and Law Enforcement Act of
1994, Pub. L. 103-322, 108 Stat. 1796. Section 320904 of that Act, id., at
2125, amends 922(q) to include congressional findings regarding the effects of
firearm possession in and around schools upon interstate and foreign commerce.
The Government does not rely upon these subsequent findings as a substitute for
the absence of findings in the first instance. Tr. of Oral Arg. 25
("[W]e're not relying on them in the strict sense of the word, but we
think that at a very minimum they indicate that reasons can be identified for
why Congress wanted to regulate this particular activity"). [ UNITED STATES v. LOPEZ, ___
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.
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.
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
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 [ UNITED
STATES v. LOPEZ, ___ U.S. ___ (1995), 3] 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
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.
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.
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
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 [ UNITED
STATES v. LOPEZ, ___ U.S. ___ (1995), 6] transit . . . in
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.
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 [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 8] 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
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 [ UNITED STATES v. LOPEZ, ___
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
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
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 [ UNITED STATES v. LOPEZ, ___
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 [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 13] 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
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.
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
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 [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 16] 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 [ UNITED STATES v. LOPEZ, ___
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. [ UNITED STATES v. LOPEZ, ___
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 [ UNITED
STATES v. LOPEZ, ___
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 [ UNITED STATES v. LOPEZ, ___
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); 1 id., No. 7, at 39-40 (A. Hamilton) [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 4] (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
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 [ UNITED STATES v. LOPEZ, ___
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 2 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.
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 [
UNITED STATES v. LOPEZ, ___
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. 3
[ UNITED STATES v. LOPEZ, ___
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.
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 [ UNITED
STATES v. LOPEZ, ___
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.
"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. 4
The comments of
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.
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 [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 11] 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.
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
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.
In Gibbons, the Court examined whether a federal law
that licensed ships to engage in the "coasting trade" pre-empted a
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
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 [ UNITED STATES v. LOPEZ, ___
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
In this passage, the Court merely was making the well [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 14] 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." 5 Gibbons simply cannot be construed as the principal dissent would have it.
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.
"`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
federal power extended to these types of production "comparatively little
of business operations and affairs would be left for state control."
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. 7 Moreover, there was no question [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 18] 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.
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
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
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.
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. 8 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. 9 [ UNITED STATES v. LOPEZ, ___
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. [ UNITED STATES v. LOPEZ,
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.
[ Footnote 1 ] All references to The Federalist are to the Jacob E. Cooke 1961 edition.
[ Footnote 2 ] Even to speak of "the Commerce
Clause" perhaps obscures the actual scope of that Clause. As an original
matter, Congress did not have authority to regulate all commerce; Congress
could only "regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes."
[ Footnote 3 ] There are other powers granted to Congress
outside of Art. I, 8 [ UNITED STATES v. LOPEZ, ___
[ Footnote 4 ] Cf. 3 Debates 40 (E. Pendleton at the
[ Footnote 5 ] None of the other Commerce Clause opinions
during Chief Justice Marshall's tenure, which concerned the "dormant"
Commerce Clause, even suggested that Congress had authority over all matters
substantially affecting commerce. See Brown v.
[ Footnote 6 ] It is worth noting that Congress, in the first
federal criminal Act, did not establish nationwide prohibitions against murder
and the like. See Act of April 30, 1790, ch. 9, 1 Stat. 112. To be sure,
Congress outlawed murder, manslaughter, maiming, and larceny, but only when
those acts were either committed on
Likewise, there were no laws in the early Congresses that regulated manufacturing and agriculture. Nor was there any statute which purported to regulate activities with "substantial effects" on interstate commerce.
[ Footnote 7 ] To be sure, congressional power pursuant to
the Commerce Clause was alternatively described less narrowly or more narrowly
during this 150-year period. Compare United States v. Coombs, 12 Pet. 72, 78
(1838) (commerce power "extends to such acts, done on land, which
interfere with, obstruct, or prevent the due exercise of the power to regulate
[interstate and international] commerce" such as stealing goods from a
beached ship) with United States v. E. C. Knight Co., 156 U.S. 1, 13 (1895)
("Contracts to buy, sell, or exchange goods to be transported among the
several States, the transportation and its instrumentalities . . . may be
regulated, but this is because they form part of interstate trade or
commerce"). [ UNITED STATES v. LOPEZ, ___
[ Footnote 8 ] Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean.
[ Footnote 9 ] Nor can the majority's opinion fairly be
compared to Lochner v.
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.
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 [
UNITED STATES v. LOPEZ, ___
[ Footnote * ]
Indeed, there is evidence that firearm manufacturers - aided by a federal grant
- are specifically targeting school children as consumers by distributing, at
schools, hunting-related videos styled "educational materials for grades
four through 12," Herbert, Reading, Writing, Reloading, N. Y. Times, Dec.
14, 1994, p. A23, col. 1. [ UNITED STATES v. LOPEZ,
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. 1
The practice of deferring to rationally based
legislative judgments "is a paradigm of judicial restraint." FCC v. [ UNITED STATES v. LOPEZ, ___
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.
Notwithstanding the Court's recognition of a broad
commerce power in Gibbons v.
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
[ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 4]
organizations); Lochner v.
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 [
UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 5] v. Wrightwood Dairy
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
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.
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.
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 [ UNITED STATES v. LOPEZ,
___ U.S. ___ (1995), 6] contractual autonomy). See, e.g.,
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
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.
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 [
UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 8] 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
"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 . . . . As long ago as 1925., the Court put to rest the contention 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).
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
U.S., at 460 , 461. Likewise, when faced with two plausible interpretations
of a [ UNITED STATES v. LOPEZ, ___
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 [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 10] 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.
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)? 2 The answer to either question [ UNITED STATES v. LOPEZ, ___
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 review 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. [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 12] 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, [ UNITED STATES v. LOPEZ, ___
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.
[ Footnote 1 ] In this case, no question has been raised about means and ends; the only issue is about the effect of school zone guns on commerce.
[ Footnote 2 ] Unlike the Court, (perhaps), I would see no
reason not to consider Congress's findings, insofar as they might be helpful in
reviewing the challenge to this statute, even though adopted in later
legislation. See the Violent Crime Control and Law Enforcement Act of 1994,
Pub. L. 103-322, 320904, 108 Stat. 2125 ("[T]he occurrence of violent
crime in school zones has resulted in a decline in the quality of education in
our country; . . . this decline . . . has an adverse impact on interstate
commerce and the foreign commerce of the United States; . . . Congress has
power, under the interstate commerce clause and other provisions of the
Constitution, to enact measures to ensure the integrity and safety of the
Nation's schools by enactment of this subsection"). The findings, however,
go no further than expressing what is obviously implicit in the substantive
legislation, at such a conclusory level of generality as to add virtually
nothing to the record. The Solicitor General certainly exercised [ UNITED STATES v. LOPEZ, ___
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.
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.
Second, in determining whether a local activity will likely have a significant effect upon interstate commerce, a court must consider, not the effect of an individual act (a single instance of gun possession), but rather the cumulative effect of all similar instances (i.e., the effect of all guns possessed in or near schools). See, e.g., Wickard, supra, at 127-128. As this Court put the matter almost 50 years ago:
"[I]t is enough that the individual activity when multiplied into a general practice . . . contains a threat to the interstate economy that requires preventative regulation." Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236 (1948) (citations omitted).
Third, the Constitution requires us to judge the connection between a regulated activity and interstate commerce, not directly, but at one remove. Courts must [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 3] give Congress a degree of leeway in determining the existence of a significant factual connection between the regulated activity and interstate commerce - both because the Constitution delegates the commerce power directly to Congress and because the determination requires an empirical judgment of a kind that a legislature is more likely than a court to make with accuracy. The traditional words "rational basis" capture this leeway. See Hodel, supra, at 276-277. Thus, the specific question before us, as the Court recognizes, is not whether the "regulated activity sufficiently affected interstate commerce," but, rather, whether Congress could have had "a rational basis" for so concluding. Ante, at 8 (emphasis added).
I recognize that we must judge this matter independently. "[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so." Hodel, supra, at 311 (REHNQUIST, J., concurring in judgment). And, I also recognize that Congress did not write specific "interstate commerce" findings into the law under which Lopez was convicted. Nonetheless, as I have already noted, the matter that we review independently (i.e., whether there is a "rational basis") already has considerable leeway built into it. And, the absence of findings, at most, deprives a statute of the benefit of some extra leeway. This extra deference, in principle, might change the result in a close case, though, in practice, it has not made a critical legal difference. See, e.g., Katzenbach v. McClung, 379 U.S. 294, 299 (1964) (noting that "no formal findings were made, which of course are not necessary"); Perez, supra, at 156-157; cf. Turner Broadcasting System, Inc. v. FCC, 512 U.S. ___, ___ (1994) (opinion of KENNEDY, J.) (slip op., at 42) ("Congress is not obligated, when enacting its statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review"); Fullilove v. [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 4] Klutznick, 448 U.S. 448, 503 (1980) (Powell, J., concurring) ("After Congress has legislated repeatedly in an area of national concern, its Members gain experience that may reduce the need for fresh hearings or prolonged debate . . ."). And, it would seem particularly unfortunate to make the validity of the statute at hand turn on the presence or absence of findings. Because Congress did make findings (though not until after Lopez was prosecuted), doing so would appear to elevate form over substance. See Pub. L. 103-322, 320904(2)(F), (G), 108 Stat. 2125, 18 U.S.C.A. 922(q)(1)(F), (G) (Nov. 1994 Supp.).
In addition, despite the Court of Appeals' suggestion to the contrary, see 2 F.3d 1342, 1365 (CA5 1993), there is no special need here for a clear indication of Congress' rationale. The statute does not interfere with the exercise of state or local authority. Cf., e.g., Dellmuth v. Muth, 491 U.S. 223, 227 -228 (1989) (requiring clear statement for abrogation of Eleventh Amendment immunity). Moreover, any clear statement rule would apply only to determine Congress' intended result, not to clarify the source of its authority or measure the level of consideration that went into its decision, and here there is no doubt as to which activities Congress intended to regulate. See ibid.; id., at 233 (SCALIA, J., concurring) (to subject States to suits for money damages, Congress need only make that intent clear, and need not refer explicitly to the Eleventh Amendment); EEOC v. Wyoming, 460 U.S. 226, 243 , n. 18 (1983) (Congress need not recite the constitutional provision that authorizes its action).
Applying these principles to the case at hand, we must
ask whether Congress could have had a rational basis for finding a significant
(or substantial) connection between gun-related school violence and interstate [ UNITED STATES v. LOPEZ, ___
For one thing, reports, hearings, and other readily
available literature make clear that the problem of guns in and around schools
is widespread and extremely serious. These materials report, for example, that
four percent of American high school students (and six percent of inner-city
high school students) carry a gun to school at least occasionally, Centers for
Disease Control 2342; Sheley, McGee, & Wright 679; that 12 percent of urban
high school students have had guns fired at them, ibid.; that 20 percent of
those students have been threatened with guns, ibid.; and that, in any 6-month
period, several hundred thousand school-children are victims of violent crimes
in or near their schools, U.S. Dept. of Justice 1 (1989); House Select
Committee Hearing 15 (1989). And, they report that this widespread violence in
schools throughout the Nation significantly interferes with the quality of education
in those schools. See, e.g., House Judiciary Committee Hearing 44 (1990)
(linking school violence to dropout [ UNITED STATES
v. LOPEZ, ___
Having found that guns in schools significantly
undermine the quality of education in our Nation's classrooms, Congress could
also have found, given the effect of education upon interstate and foreign
commerce, that gun-related violence in and around schools is a commercial, as
well as a human, problem. Education, although far more than a matter of
economics, has long been inextricably intertwined with the Nation's economy.
When this Nation began, most workers received their education in the workplace,
typically (like Benjamin Franklin) as apprentices. See generally Seybolt;
Rorabaugh; U.S. Dept. of Labor (1950). As late as the 1920's, many workers
still received general education directly from their employers - from large
corporations, such as General Electric, Ford, and Goodyear, which created
schools within their firms to help both the worker and the firm. See Bolino
15-25. (Throughout most of the 19th century fewer than one percent of all
Americans received secondary education through attending a high school. See
id., at 11.) As public school enrollment grew in the early 20th century, see
Becker 218 (1993), the need for industry to teach basic educational skills diminished.
But, the direct economic link between basic education and industrial
productivity [ UNITED STATES v. LOPEZ, ___
In recent years the link between secondary education and business has strengthened, becoming both more direct and more important. Scholars on the subject report that technological changes and innovations in management techniques have altered the nature of the workplace so that more jobs now demand greater educational skills. See, e.g., MIT 32 (only about one-third of hand-tool company's 1,000 workers were qualified to work with a new process that requires high-school-level reading and mathematical skills); Cyert & Mowery 68 (gap between wages of high school dropouts and better trained workers increasing); U.S. Dept. of Labor 41 (1981) (job openings for dropouts declining over time). There is evidence that "service, manufacturing or construction jobs are being displaced by technology that requires a better-educated worker or, more likely, are being exported overseas," Gordon, Ponticell, & Morgan 26; that "workers with truly few skills by the year 2000 will find that only one job out of ten will remain," ibid.; and that
"[o]ver the long haul the
best way to encourage the growth of high-wage jobs is to upgrade the skills of
the work force. . . . [B]etter-trained workers become more productive workers,
enabling a company to become more competitive and expand." Henkoff 60. [ UNITED STATES v. LOPEZ, ___
global competition also has made primary and secondary education economically
more important. The portion of the American economy attributable to
international trade nearly tripled between 1950 and 1980, and more than 70
percent of American-made goods now compete with imports. Marshall 205; Marshall
& Tucker 33. Yet, lagging worker productivity has contributed to negative
trade balances and to real hourly compensation that has fallen below wages in
10 other industrialized nations.
Finally, there is evidence that, today more than ever, many firms base their location decisions upon the presence, or absence, of a work force with a basic education. See MacCormack, Newman, & Rosenfield 73; Coffee 296. Scholars on the subject report, for example, that today, "[h]igh speed communication and transportation make it possible to produce most products and services anywhere in the world," National Center 38; that "[m]odern machinery and production methods can [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 9] therefore be combined with low wage workers to drive costs down," ibid.; that managers can perform "`back office functions anywhere in the world now,'" and say that if they "`can't get enough skilled workers here'" they will "`move the skilled jobs out of the country,'" id., at 41; with the consequence that "rich countries need better education and retraining, to reduce the supply of unskilled workers and to equip them with the skills they require for tomorrow's jobs," Survey of Global Economy 37. In light of this increased importance of education to individual firms, it is no surprise that half of the Nation's manufacturers have become involved with setting standards and shaping curricula for local schools, Maturi 65-68, that 88 percent think this kind of involvement is important, id., at 68, that more than 20 States have recently passed educational reforms to attract new business, Overman 61-62, and that business magazines have begun to rank cities according to the quality of their schools, see Boyle 24.
The economic links I have just sketched seem fairly
obvious. Why then is it not equally obvious, in light of those links, that a
widespread, serious, and substantial physical threat to teaching and learning
also substantially threatens the commerce to which that teaching and learning
is inextricably tied? That is to say, guns in the hands of six percent of
inner-city high school students and gun-related violence throughout a city's
schools must threaten the trade and commerce that those schools support. The
only question, then, is whether the latter threat is (to use the majority's
terminology) "substantial." And, the evidence of (1) the extent of
the gun-related violence problem, see supra, at 5, (2) the extent of the
resulting negative effect on classroom learning, see supra, at 5-6, and (3) the
extent of the consequent negative commercial effects, see supra, at 6-9, when
taken together, indicate a threat to trade and commerce that is
"substantial." At the very least, Congress could [ UNITED STATES v. LOPEZ, ___
Specifically, Congress could have found that
gun-related violence near the classroom poses a serious economic threat (1) to
consequently inadequately educated workers who must endure low paying jobs,
see, e.g., National Center 29, and (2) to communities and businesses that might
(in today's "information society") otherwise gain, from a
well-educated work force, an important commercial advantage, see, e.g., Becker
10 (1992), of a kind that location near a railhead or harbor provided in the
past. Congress might also have found these threats to be no different in kind
from other threats that this Court has found within the commerce power, such as
the threat that loan sharking poses to the "funds" of "numerous
localities," Perez v. United States, 402
U.S., at 157 , and that unfair labor practices pose to instrumentalities of
commerce, see Consolidated Edison Co. v. NLRB, 305
U.S. 197, 221 -222 (1938). As I have pointed out, supra, at 4, Congress has
written that "the occurrence of violent crime in school zones" has
brought about a "decline in the quality of education" that "has
an adverse impact on interstate commerce and the foreign commerce of the
To hold this statute constitutional is not to "obliterate" the "distinction of what is national and what is local," ante, at 18 (citation omitted; internal quotation marks omitted); nor is it to hold that the Commerce Clause [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 11] permits the Federal Government to "regulate any activity that it found was related to the economic productivity of individual citizens," to regulate "marriage, divorce, and child custody," or to regulate any and all aspects of education. Ante, at 15-16. For one thing, this statute is aimed at curbing a particularly acute threat to the educational process - the possession (and use) of life-threatening firearms in, or near, the classroom. The empirical evidence that I have discussed above unmistakably documents the special way in which guns and education are incompatible. See supra, at 5-6. This Court has previously recognized the singularly disruptive potential on interstate commerce that acts of violence may have. See Perez, supra, at 156-157. For another thing, the immediacy of the connection between education and the national economic well-being is documented by scholars and accepted by society at large in a way and to a degree that may not hold true for other social institutions. It must surely be the rare case, then, that a statute strikes at conduct that (when considered in the abstract) seems so removed from commerce, but which (practically speaking) has so significant an impact upon commerce.
In sum, a holding that the particular statute before
us falls within the commerce power would not expand the scope of that Clause.
Rather, it simply would apply pre-existing law to changing economic
circumstances. See Heart of Atlanta Motel, Inc. v.
The majority's holding - that 922 falls outside the
scope of the Commerce Clause - creates three serious legal problems. First, the
majority's holding runs contrary to modern Supreme Court cases that have upheld
congressional actions despite connections to interstate or foreign commerce
that are less significant than the effect of school violence. In Perez v.
In Katzenbach v. McClung, 379 U.S. 294 (1964), this Court upheld, as within the commerce power, a statute prohibiting racial discrimination at local restaurants, in part because that discrimination discouraged travel by African Americans and in part because that discrimination [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 13] affected purchases of food and restaurant supplies from other States. See id., at 300; Heart of Atlanta Motel, supra, at 274 (Black, J., concurring in McClung and in Heart of Atlanta). In Daniel v. Paul, 395 U.S. 298 (1969), this Court found an effect on commerce caused by an amusement park located several miles down a country road in the middle of Alabama - because some customers (the Court assumed), some food, 15 paddleboats, and a juke box had come from out of State. See id., at 304-305, 308. In both of these cases, the Court understood that the specific instance of discrimination (at a local place of accommodation) was part of a general practice that, considered as a whole, caused not only the most serious human and social harm, but had nationally significant economic dimensions as well. See McClung, supra, at 301; Daniel, supra, at 307, n. 10. It is difficult to distinguish the case before us, for the same critical elements are present. Businesses are less likely to locate in communities where violence plagues the classroom. Families will hesitate to move to neighborhoods where students carry guns instead of books. (Congress expressly found in 1994 that "parents may decline to send their children to school" in certain areas "due to concern about violent crime and gun violence." 18 U.S.C.A. 922(q)(1)(E) (Nov. 1994 Supp.)). And (to look at the matter in the most narrowly commercial manner), interstate publishers therefore will sell fewer books and other firms will sell fewer school supplies where the threat of violence disrupts learning. Most importantly, like the local racial discrimination at issue in McClung and Daniel, the local instances here, taken together and considered as a whole, create a problem that causes serious human and social harm, but also has nationally significant economic dimensions.
In Wickard v. Filburn, 317 U.S.
111 (1942), this Court sustained the application of the Agricultural [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995),
14] Adjustment Act of 1938
to wheat that Filburn grew and consumed on his own local farm because,
considered in its totality, (1) home-grown wheat may be "induced by rising
prices" to "flow into the market and check price increases," and
(2) even if it never actually enters the market, home-grown wheat nonetheless
"supplies a need of the man who grew it which would otherwise be reflected
by purchases in the open market" and, in that sense, "competes with
wheat in commerce."
The second legal problem the Court creates comes from its apparent belief that it can reconcile its holding with earlier cases by making a critical distinction between "commercial" and noncommercial "transaction[s]." Ante, at 12-13. That is to say, the Court believes the Constitution would distinguish between two local activities, each of which has an identical effect upon interstate commerce, if one, but not the other, is "commercial" in nature. As a general matter, this approach fails to heed this Court's earlier warning not to turn "questions of the power of Congress" upon "formula[s]" that would give
"controlling force to nomenclature such as `production' and `indirect' and foreclose consideration [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 15] of the actual effects of the activity in question upon interstate commerce." Wickard, supra, at 120.
also United States v. Darby, 312
U.S. 100, 116 -117 (1941) (overturning the Court's distinction between
"production" and "commerce" in the child labor case, Hammer
v. Dagenhart, 247 U.S. 251, 271-272 (1918)); Swift & Co. v. United States,
196 U.S., at 398 (Holmes, J.) ("[C]ommerce among the States is not a
technical legal conception, but a practical one, drawn from the course of
business"). Moreover, the majority's test is not consistent with what the
Court saw as the point of the cases that the majority now characterizes.
Although the majority today attempts to categorize Perez, McClung, and Wickard
as involving intrastate "economic activity," ante, at 10-11, the
Courts that decided each of those cases did not focus upon the economic nature
of the activity regulated. Rather, they focused upon whether that activity
affected interstate or foreign commerce. In fact, the
More importantly, if a distinction between commercial and noncommercial activities is to be made, this is not the case in which to make it. The majority clearly cannot intend such a distinction to focus narrowly on an act of gun possession standing by itself, for such a reading could not be reconciled with either the civil rights cases (McClung and Daniel) or Perez in each of those cases the specific transaction (the race-based exclusion, the use of force) was not itself "commercial." And, if the majority instead means to distinguish generally among broad categories of activities, differentiating what is educational from what is commercial, then, as a practical matter, the line becomes almost impossible [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995), 16] to draw. Schools that teach reading, writing, mathematics, and related basic skills serve both social and commercial purposes, and one cannot easily separate the one from the other. American industry itself has been, and is again, involved in teaching. See supra, at 6, 9. When, and to what extent, does its involvement make education commercial? Does the number of vocational classes that train students directly for jobs make a difference? Does it matter if the school is public or private, nonprofit or profit-seeking? Does it matter if a city or State adopts a voucher plan that pays private firms to run a school? Even if one were to ignore these practical questions, why should there be a theoretical distinction between education, when it significantly benefits commerce, and environmental pollution, when it causes economic harm? See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981).
Regardless, if there is a principled distinction that
could work both here and in future cases, Congress (even in the absence of
vocational classes, industry involvement, and private management) could
rationally conclude that schools fall on the commercial side of the line. In
1990, the year Congress enacted the statute before us, primary and secondary
schools spent $230 billion - that is, nearly a quarter of a trillion dollars
which accounts for a significant portion of our $5.5 trillion Gross Domestic
Product for that year. See Statistical Abstract 147, 442 (1993). The business
of schooling requires expenditure of these funds on student transportation,
food and custodial services, books, and teachers' salaries. See
The third legal problem created by the Court's holding
is that it threatens legal uncertainty in an area of law that, until this case,
seemed reasonably well settled. Congress has enacted many statutes (more than
100 sections of the United States Code), including criminal statutes (at least
25 sections), that use the words "affecting commerce" to define their
scope, see, e.g., 18 U.S.C. 844(i) (destruction of buildings used in activity
affecting interstate commerce), and other statutes that contain no
jurisdictional language at all, see, e.g., 18 U.S.C. 922(o)(1) (possession of
machine guns). Do these, or similar, statutes regulate noncommercial
activities? If so, would that alter the meaning of "affecting
commerce" in a jurisdictional element? Cf.
In sum, to find this legislation within the scope of
the Commerce Clause would permit "Congress . . . to act in terms of economic
. . . realities." North American Co. v. SEC, 327
U.S., at 705 (citing Swift & Co. v.