Petitioner Christy Brzonkala met respondents Antonio Morrison and James Crawford at a campus party at Virginia Polytechnic


Petitioner Christy Brzonkala met respondents Antonio Morrison and James Crawford at a campus party at Virginia Polytechnic Institute (Virginia Tech), where they were all students. At the party, the respondents allegedly assaulted and raped her. According to Brzonkala, during the months following the rape, Morrison made boasting, debasing, and vulgar remarks in the dormitory’s dining room about what he would do to women. Brzonkala alleged she became severely emotionally disturbed and depressed as a result of this attack and Morrison’s subsequent behavior. Consequently, she had to seek assistance from a university psychiatrist, who prescribed antidepressant medication. Shortly thereafter, she stopped attending classes and withdrew from the university.
Brzonkala filed a complaint against the respondents under the university’s Sexual Assault Policy. Morrison was initially found guilty and suspended for two semesters, but his punishment was ultimately set aside.
She then sued Morrison, Crawford, and Virginia Tech in federal court, alleging, among other claims, that Morrison’s and Crawford’s attack violated the Violence Against Women Act. The respondents moved to dismiss the complaint on the grounds that it failed to state a claim and that the Act’s (§ 13981’s) civil remedy was unconstitutional.
The District Court found that Brzonkala’s complaint stated a claim against the respondents under § 13981, but dismissed the complaint because it concluded that Congress lacked constitutional authority to enact § 13981’s civil remedy. The US Court of Appeals, by a divided vote, affirmed the District Court’s conclusion. Brzonkala appealed.
CHIEF JUSTICE REHNQUIST …Section 13981 was part of the Violence Against Women Act of 1994…. It states that “[a]ll persons within the United States shall have the right to be free from crimes of violence motivated by gender.” To enforce that right, subsection (c) declares: “A person …who commits a crime of violence motivated by gender and thus deprives another of the right declared in subsection (b) of this section shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate.” …
Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution…. [W]e turn to the question whether § 13981 falls within Congress’ power under Article I, § 8, of the Constitution. Brzonkala and the United States rely upon the third clause of the Article, which gives Congress power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
As we discussed at length in Lopez, our interpretation of the Commerce Clause has changed as our Nation has developed…. Lopez emphasized, however, that even under our modern, expansive interpretation of the Commerce Clause, Congress’ regulatory authority is not without effective bounds.
Modern Commerce Clause jurisprudence has “identified three broad categories of activity that Congress may regulate under its commerce power.

”“First, Congress may regulate the use of the channels of interstate commerce.” …“Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.” …“Finally, Congress’
commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, …i.e., those activities that substantially affect interstate commerce.”
Petitioners …seek to sustain § 13981 as a regulation of activity that substantially affects interstate commerce. Given § 13981’s focus on gender-motivated violence wherever it occurs …we agree that this is the proper inquiry.
Since Lopez most recently canvassed and clarified our case law governing this third category of Commerce Clause regulation, it provides the proper framework for conducting the required analysis of § 13981. In Lopez, we held that the Gun-Free School Zones Act of 1990, which made it a federal crime to knowingly possess a firearm in a school zone, exceeded Congress’ authority under the Commerce Clause. Several significant considerations contributed to our decision.
First, we observed that § 922 q was “a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” … The pattern of analysis is clear. “Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.”
Both petitioners and Justice Souter’s dissent downplay the role that the economic nature of the regulated activity plays in our Commerce Clause analysis. But a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case…. Lopez’s review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor.
The second consideration that we found important in analyzing § 922 q was that the statute contained “no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.” Such a jurisdictional element may establish that the enactment is in pursuance of Congress’ regulation of interstate commerce.
Third, we noted that neither § 922 q “nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.” …While “Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce,” the existence of such findings may “enable us to evaluate the legislative judgment that the activity in question substantially affect[s]
interstate commerce, even though no such substantial effect [is] visible to the naked eye.”
Finally, our decision in Lopez rested in part on the fact that the link between gun possession and a substantial effect on interstate commerce was attenuated.
The United States argued that the possession of guns may lead to violent crime, and that violent crime “can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population.
Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe.” The Government also argued that the presence of guns at schools poses a threat to the educational process, which in turn threatens to produce a less efficient and productive workforce, which will negatively affect national productivity and thus interstate commerce.
We rejected these “costs of crime” and “national productivity” arguments because they would permit Congress to “regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce.” We noted that, under this but-for reasoning: “Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the[se] theories …, it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.”
With these principles underlying our Commerce Clause jurisprudence as reference points, the proper resolution of the present cases is clear. Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.
Like the Gun-Free School Zones Act at issue in Lopez, § 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’ power to regulate interstate commerce.
In contrast with the lack of congressional findings that we faced in Lopez, § 13981 is supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families…. But the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. As we stated in Lopez, “[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.” …Rather, “[w]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.”
In these cases, Congress’ findings are substantially weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution’s enumeration of powers. Congress found that gender-motivated violence affects interstate commerce “by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce; …by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.” Given these findings and petitioners’ arguments, the concern that we expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority seems well founded.
The reasoning that petitioners advance seeks to follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has always been the prime object of the States’ police power) to every attenuated effect upon interstate commerce. If accepted, petitioners’ reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence since gendermotivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part.
We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local…. In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States.
AFFIRMED in favor of respondents.
Dissent JUSTICE SOUTER, with whom Justice Stevens, Justice Ginsberg, and Justice Breyer join:
…Congress has the power to legislate with regard to activity that, in the aggregate, has a substantial effect on interstate commerce. The fact of such a substantial effect is not an issue for the courts in the first instance, but for the Congress, whose institutional capacity for gathering evidence and taking testimony far exceeds ours. By passing legislation, Congress indicates its conclusion, whether explicitly or not, that facts support its exercise of the commerce power. The business of the courts is to review the congressional assessment, not for soundness but simply for the rationality of concluding that a jurisdictional basis exists in fact. Any explicit findings that Congress chooses to make, though not dispositive of the question of rationality, may advance judicial review by identifying factual authority on which Congress relied.
One obvious difference from United States v. Lopez is the mountain of data assembled by Congress, here showing the effects of violence against women on interstate commerce. Passage of the Act in 1994 was preceded by four years of hearings, which included testimony from physicians and law professors; from survivors of rape and domestic violence; and from representatives of state law enforcement and private business. The record includes reports on gender bias from task forces in twenty-one states, and we have the benefit of specific factual findings of the eight separate Reports issued by Congress and its committees over the long course leading to enactment.
Having identified the problem of violence against women, Congress may address what it sees as the most threatening manifestation…. Congress found that “crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce …[,] by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products….”
Congress thereby explicitly stated the predicate for the exercise of its Commerce Clause power. Is its conclusion irrational in view of the data amassed? True, the methodology of particular studies may be challenged, and some of the figures arrived at may be disputed. But the sufficiency of the evidence before Congress to provide a rational basis for the finding cannot seriously be questioned…. Indeed, the legislative record here is far more voluminous than the record compiled by Congress and found sufficient in two prior cases upholding Title II of the Civil Rights Act of 1964 against Commerce Clause challenges.
The fact that the Act does not pass muster before the Court today is therefore proof, to a degree that Lopez was not, that the Court’s nominal adherence to the substantial effects test is merely that. Although a new jurisprudence has not emerged with any distinctness, it is clear that some congressional conclusions about obviously substantial, cumulative effects on commerce are being assigned lesser values than the once-stable doctrine would assign them. These devaluations are accomplished not by any express repudiation of the substantial effects test or its application through the aggregation of individual conduct, but by supplanting rational basis scrutiny with a new criterion of review.
Thus, the elusive heart of the majority’s analysis in these cases is its statement that Congress’s findings of fact are “weakened” by the presence of a disfavored “method of reasoning.” This seems to suggest that the “substantial effects” analysis is not a factual enquiry, for Congress in the first instance with subsequent judicial review looking only to the rationality of the congressional conclusion, but one of a rather different sort, dependent upon a uniquely judicial competence.
This new characterization of substantial effects has no support in our cases (the self-fulfilling prophecies of Lopez aside), least of all those the majority cites.
Explain why you find the reasoning in either the majority or minority opinion more persuasive.
Explain how different stakeholders would be the primary beneficiaries of the majority and minority decisions.

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