FindLaw | Cases and Codes

View enhanced case on Westlaw
KeyCite this case on Westlaw	http://laws.findlaw.com/4th/961814ap.html

BRZONKALA v VPI STATE UNIV,

U.S. 4th Circuit Court of Appeals

BRZONKALA v VPI STATE UNIV

Volume 1 of 5

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHRISTY BRZONKALA, Plaintiff-Appellant,

VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY; ANTONIO J. MORRISON; JAMES LANDALE CRAWFORD, Defendants-Appellees,

and

CORNELL D. BROWN; WILLIAM E. LANDSIDLE, in his capacity as Comptroller of the Commonwealth, Defendants.

LAW PROFESSORS; VIRGINIANS ALIGNED No. 96-1814 AGAINST SEXUAL ASSAULT; THE ANTI- DEFAMATION LEAGUE; CENTER FOR WOMEN POLICY STUDIES; THE DC RAPE CRISIS CENTER; EQUAL RIGHTS ADVOCATES; THE GEORGETOWN UNIVERSITY LAW CENTER SEX DISCRIMINATION CLINIC; JEWISH WOMEN INTERNATIONAL; THE NATIONAL ALLIANCE OF SEXUAL ASSAULT COALITIONS; THE NATIONAL COALITION AGAINST DOMESTIC VIOLENCE; THE NATIONAL COALITION AGAINST SEXUAL ASSAULT; THE NATIONAL NETWORK TO END DOMESTIC VIOLENCE; NATIONAL ORGANIZATION FOR WOMEN;

NORTHWEST WOMEN'S LAW CENTER; THE PENNSYLVANIA COALITION AGAINST DOMESTIC VIOLENCE, INCORPORATED; VIRGINIA NATIONAL ORGANIZATION FOR WOMEN; VIRGINIA NOW LEGAL DEFENSE AND EDUCATION FUND, INCORPORATED; WOMEN EMPLOYED; WOMEN'S LAW PROJECT; WOMEN'S LEGAL DEFENSE FUND; INDEPENDENT WOMEN'S FORUM; WOMEN'S FREEDOM NETWORK, Amici Curiae.

UNITED STATES OF AMERICA, Intervenor-Appellant,

and

CHRISTY BRZONKALA, Plaintiff,

ANTONIO J. MORRISON; JAMES LANDALE CRAWFORD, Defendants-Appellees,

                                                     
No. 96-2316

and

VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY; CORNELL D. BROWN; WILLIAM E. LANDSIDLE, in his capacity as Comptroller of the Commonwealth, Defendants.

LAW PROFESSORS; VIRGINIANS ALIGNED AGAINST SEXUAL ASSAULT; THE ANTI- DEFAMATION LEAGUE; CENTER FOR WOMEN POLICY STUDIES; THE DC RAPE CRISIS CENTER; EQUAL RIGHTS ADVOCATES; THE GEORGETOWN UNIVERSITY LAW CENTER SEX DISCRIMINATION CLINIC; JEWISH WOMEN INTERNATIONAL; THE NATIONAL ALLIANCE OF SEXUAL ASSAULT COALITIONS; THE NATIONAL COALITION AGAINST DOMESTIC VIOLENCE; THE NATIONAL COALITION AGAINST SEXUAL ASSAULT; THE NATIONAL NETWORK TO END DOMESTIC VIOLENCE; NATIONAL ORGANIZATION FOR WOMEN; NORTHWEST No. 96-2316 WOMEN'S LAW CENTER; THE PENNSYLVANIA COALITION AGAINST DOMESTIC VIOLENCE, INCORPORATED; VIRGINIA NATIONAL ORGANIZATION FOR WOMEN; VIRGINIA NOW LEGAL DEFENSE AND EDUCATION FUND, INCORPORATED; WOMEN EMPLOYED; WOMEN'S LAW PROJECT; WOMEN'S LEGAL DEFENSE FUND; INDEPENDENT WOMEN'S FORUM; WOMEN'S FREEDOM NETWORK, Amici Curiae.

Appeals from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Senior District Judge. (CA-95-1358-R)

Argued: March 3, 1998

Decided: March 5, 1999

Before WILKINSON, Chief Judge, and WIDENER, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

COUNSEL

ARGUED: Mark Bernard Stern, Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Julie Goldscheid, NOW LEGAL DEFENSE & EDUCATION FUND, New York, New York; Deborah L. Brake, NATIONAL WOMEN'S LAW CENTER, Washington, D.C., for Appellants. Wil- liam Henry Hurd, Senior Counsel to the Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia; Michael E. Rosman, CENTER FOR INDIVIDUAL RIGHTS, Washington, D.C., for Appellees. ON BRIEF: Frank W. Hunger, Assistant Attorney General, Robert P. Crouch, Jr., United States Attorney, Stephen W. Preston, Deputy Assistant Attorney General, Alisa B. Klein, Anne M. Lobell, Appellate Staff, Civil Division, UNITED STATES DEPART- MENT OF JUSTICE, Washington, D.C., for Appellant United States; Martha F. Davis, NOW LEGAL DEFENSE & EDUCATION FUND, New York, New York; Neena K. Chaudry, Marcia D. Greenberger, NATIONAL WOMEN'S LAW CENTER, Washington, D.C.; Eileen Wagner, Richmond, Virginia, for Appellant Brzonkala. Mark L. Ear- ley, Attorney General of Virginia, William E. Thro, Assistant Attor- ney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia; Jerry D. Cain, Special Assistant Attorney General, Kay Heidbreder, Special Assistant Attorney General, VIRGINIA POLY- TECHNIC INSTITUTE AND STATE UNIVERSITY, Blacksburg, Virginia, for Appellee VPI. Hans F. Bader, CENTER FOR INDIVID- UAL RIGHTS, Washington, D.C.; W. David Paxton, M. Christina Floyd, GENTRY, LOCKE, RAKES & MOORE, Roanoke, Virginia, for Appellee Morrison; Joseph Graham Painter, Jr., PAINTER, KRATMAN, SWINDELL & CRENSHAW, Blacksburg, Virginia, for Appellee Crawford. Sara D. Schotland, Amy W. Schulman, CLEARY, GOTTLIEB, STEEN & HAMILTON, Washington, D.C., for Amici Curiae Law Professors. Janice Redinger, VIRGINIANS ALIGNED AGAINST SEXUAL ASSAULT, Charlottesville, Vir- ginia; Minna J. Kotkin, Sara Kay, Federal Litigation Program, BLS LEGAL SERVICES CORPORATION, Brooklyn, New York, for Amici Curiae Virginians Aligned, et al. E. Duncan Getchell, Jr., J. William Boland, Robert L. Hodges, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Richmond, Virginia, for Amicus Curiae Inde- pendent Women's Forum. Michael D. Weiss, LAWSON, WEISS & DANZIGER, Houston, Texas, for Amicus Curiae Women's Freedom Network.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

We the People, distrustful of power, and believing that government limited and dispersed protects freedom best, provided that our federal government would be one of enumerated powers, and that all power unenumerated would be reserved to the several States and to our- selves. Thus, though the authority conferred upon the federal govern- ment be broad, it is an authority constrained by no less a power than that of the People themselves. "[T]hat these limits may not be mis- taken, or forgotten, the constitution is written." Marbury v. Madison , 1 Cranch 137, 176 (1803). These simple truths of power bestowed and power withheld under the Constitution have never been more rel- evant than in this day, when accretion, if not actual accession, of power to the federal government seems not only unavoidable, but even expedient.

These foundational principles of our constitutional government dic- tate resolution of the matter before us. For we address here a congres- sional statute, Subtitle C of the Violence Against Women Act, 42 U.S.C. § 13981, that federally punishes noncommercial intrastate vio- lence, but is defended under Congress' power "[t]o regulate commerce . . . among the several States," U.S. Const. art. I, § 8, cl. 3, and that punishes private conduct, but is defended under Congress' power "to enforce, by appropriate legislation" the Fourteenth Amend- ment guarantee that "[n]o State shall. . . deny to any person within its jurisdiction the equal protection of the laws," U.S. Const. amend. XIV, §§ 1, 5. Such a statute, we are constrained to conclude, simply cannot be reconciled with the principles of limited federal govern- ment upon which this Nation is founded. As even the United States and appellant Brzonkala appear resignedly to recognize, the Supreme Court's recent decisions in United States v. Lopez , 514 U.S. 549 (1995), and City of Boerne v. Flores , 117 S. Ct. 2157 (1997), which forcefully reaffirmed these most basic of constitutional principles, all but preordained as much. Enacted by the Congress assertedly in exer- cise of its powers both to regulate interstate commerce and to enforce the prohibitions of the Fourteenth Amendment, section 13981 was ini- tially defended by appellants in the wake of United States v. Lopez primarily as a valid exercise, not of Congress' Commerce Clause power, but of Congress' power under Section 5 to enforce the Four- teenth Amendment's restrictions on the States -- notwithstanding the statute's regulation of conduct purely private. Confronted by the Supreme Court's intervening decision in City of Boerne v. Flores dur- ing this appeal, the appellants retreated to defend the statute primarily as an exercise, not of Congress' power under Section 5 of the Four- teenth Amendment, but of its power under the Commerce Clause -- notwithstanding the statute's regulation of conduct neither commer- cial nor interstate. And, finally, in the end, appellants are forced by these two plainly controlling decisions to defend the statute on little more than wistful assertions that United States v. Lopez is an aberra- tion of no significance and that the established precedents upon which City of Boerne v. Flores rested -- United States v. Harris , 106 U.S. 629 (1883), and the Civil Rights Cases , 109 U.S. 3 (1883) -- should be disregarded as insufficiently "modern" to define any longer the reach of Congress' power under the Fourteenth Amendment.

Appreciating the precariousness in which appellants find them- selves by virtue of the intervening decisions in Lopez and City of Boerne , but accepting these recent and binding authorities as the con- sidered judgments of a Supreme Court that has incrementally, but jealously, enforced the structural limits on congressional power that inhere in Our Federalism, see Printz v. United States , 117 S. Ct. 2365, 2376-78 (1997); City of Boerne v. Flores , 117 S. Ct. 2157, 2162, 2168, 2172 (1997); Seminole Tribe v. Florida , 517 U.S. 44, 64-65 (1996); United States v. Lopez , 514 U.S. 549, 552-53 , 556-57, 567-68 (1995); New York v. United States , 505 U.S. 144, 155-57 (1992), we hold today that section 13981 exceeds Congress' power under both the Commerce Clause of Article I, Section 8, and the Enforcement Clause of Section 5 of the Fourteenth Amendment.

To otherwise hold would require not only that we, as the dissent would do, disclaim all responsibility to "determine whether the Con- gress has exceeded limits allowable in reason for the judgment which it has exercised," Polish Nat'l Alliance v. NLRB , 322 U.S. 643, 650 (1944), and embrace the view of federalism articulated by Justice Blackmun over passionate denouncements by the Chief Justice and Justice O'Connor in Garcia v. San Antonio Metropolitan Transit Authority , 469 U.S. 528 (1984), but that we extend the reach of Sec- tion 5 of the Fourteenth Amendment beyond a point ever contem- plated by the Supreme Court since that Amendment's ratification over a century and a quarter ago. These things we simply cannot do.

In response to the problems of domestic violence, sexual assault, and other forms of violent crime against women, Congress enacted the Violence Against Women Act of 1994 ("VAWA"), Pub. L. No. 103-322, §§ 40001-40703, 108 Stat. 1796, 1902-55. This legislation represents a multifaceted federal response to the problem of violence against women and includes a host of provisions, only one of which we address today.

VAWA's provisions are too numerous to discuss exhaustively here. Among its many provisions not at issue, VAWA provides exten- sive federal funding -- initially $1.6 billion, but subject to subsequent enhancement -- to the States to help them curtail violence against women through law enforcement efforts, 42 U.S.C.§ 3796gg, educa- tion and prevention programs, id . § 300w-10, and the maintenance of battered women's shelters, id . § 10402(a); it criminalizes interstate acts of domestic violence, 18 U.S.C. § 2261, as well as the interstate violation of protective orders against violence and harassment, id . § 2262; it imposes various sentencing enhancements for existing fed- eral crimes motivated by gender animus, 28 U.S.C.§ 994, restitution to the victims of violent crime against women, 18 U.S.C. §§ 2248, 2259, 2264, and other remedial provisions governing those who com- mit violent crimes against women, see , e.g. , id . § 2247 (repeat offend- ers); id . § 2263 (pretrial release of defendants); it amends the Federal Rules of Evidence by adopting a rape shield provision to exclude from sexual assault trials evidence of a victim's prior sexual behavior, 28 U.S.C. § 2074; Fed. R. Evid. 412; and it mandates that all States give Full Faith and Credit to the protective orders of every other State, 18 U.S.C. § 2265.

In addition to these provisions, however, VAWA establishes, in the single section at issue before us today, a federal substantive right in "[a]ll persons within the United States . . . to be free from crimes of violence motivated by gender." 42 U.S.C. § 13981(b). See infra Part II. And, to enforce this substantive right, section 13981(c) creates a private cause of action against any "person . . . who commits a crime of violence motivated by gender," 42 U.S.C. § 13981(c), and allows any party injured by such a crime to obtain compensatory damages, punitive damages, and injunctive, declaratory, or other appropriate relief, id .

Plaintiff-appellant Christy Brzonkala brought the instant action under section 13981 in federal district court against defendants- appellees Antonio Morrison and James Crawford. As is relevant here, she alleged as follows. ¹ Brzonkala was a student at Virginia Polytech- nic Institute at the time of the incident at issue. Morrison and Craw- ford were students at Virginia Polytechnic Institute at the same time and were members of the school's football team. Brzonkala alleges that soon after she met Morrison and Crawford, the two defendants pinned her down on a bed in her dormitory and forcibly raped her. J.A. at 71-72. Afterwards, Morrison told Brzonkala,"You better not have any f***ing diseases." Id . at 72. And, subsequently, Morrison announced publicly in the dormitory's dining hall,"I like to get girls drunk and f*** the s*** out of them." Id . at 73. In her complaint, Brzonkala alleges, inter alia , that these acts by Morrison and Craw- ford violated her right under 42 U.S.C. § 13981(b) to be free from gender-motivated crimes of violence. ²

Morrison and Crawford moved to dismiss Brzonkala's claim on the grounds that the complaint failed to state a claim under section 13981 and that, even if the complaint did state such a claim, Congress was without constitutional authority to enact section 13981. The United States intervened to defend the constitutionality of section 13981 under the Commerce Clause and Section 5 of the Fourteenth Amend- ment -- the two sources of power expressly invoked by Congress in enacting section 13981. See 42 U.S.C. § 13981(a) (declaring statute adopted "[p]ursuant to the affirmative power of Congress to enact this part under section 5 of the Fourteenth Amendment to the Constitu- tion, as well as under section 8 of Article I of the Constitution"). The government, joined by Brzonkala, defended section 13981 as an appropriate exercise of Congress' power to regulate interstate com- merce on the ground that violence against women is a widespread social problem with ultimate effects on the national economy. They defended section 13981 as an exercise of Section 5 of the Fourteenth Amendment on the grounds that bias and discrimination against women in the state criminal justice systems often deny legal redress to the victims of gender-motivated crimes of violence and that such denials may violate the Equal Protection Clause.

In a thorough opinion, the district court concluded that Brzonkala stated a statutory claim against defendant Morrison, but held that Congress was without authority under the Constitution to enact sec- tion 13981. 935 F. Supp. 779 (W.D. Va. 1996). With respect to whether section 13981 could be justified under Congress' power "[t]o regulate Commerce . . . among the several States," U.S. Const. art. I, § 8, cl. 3, the district court meticulously canvassed the reasoning of Lopez , the Supreme Court's recent decision that invalidated the Gun- Free School Zones Act of 1990 as an unconstitutional exercise of Congress' Commerce Clause power. 935 F. Supp. at 785-88. The dis- trict court concluded that section 13981, like the Gun-Free School Zones Act, regulated neither the channels of interstate commerce nor the instrumentalities of interstate commerce, and thus could be upheld, if at all, only as a regulation of an activity that "substantially affects" interstate commerce. Id . at 786. Applying Lopez 's "substan- tially affects" test to section 13981, the district court concluded that, like the Gun-Free School Zones Act, section 13981 could not be sus- tained under the Commerce Clause both because it regulated noneco- nomic activity (private acts of gender-motivated violence) without any jurisdictional requirement limiting its application only to particu- lar acts of violence that in fact affect interstate commerce and because the practical implications of concluding that gender-motivated vio- lence was sufficiently related to interstate commerce to justify its reg- ulation would be to grant Congress power to regulate virtually the whole of criminal and domestic relations law. Id . at 788-93. The dis- trict court reasoned that these failings rendered section 13981 materi- ally indistinguishable from the Gun-Free School Zones Act invalidated in Lopez , and that the asserted differences between section 13981 and the Gun-Free School Zones Act -- that Congress made more extensive findings with respect to section 13981, that section 13981 imposes only civil and not criminal liability, and that there are arguably slightly "fewer steps of causation" in the chain from gender- motivated violence to an effect on interstate commerce -- were, essentially, superficial distinctions in light of the Supreme Court's controlling reasoning in Lopez . Id .

Turning to Section 5, the district court then concluded that section 13981 was not "appropriate legislation" "to enforce" the guarantee that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, §§ 1, 5. In this regard, the district court concluded, first, that section 13981, which regulates private acts of gender-motivated violence, could not be rec- onciled with controlling Supreme Court precedent holding that Con- gress may not regulate purely private conduct under Section 5. 935 F. Supp. at 793-94 (citing, among others, Civil Rights Cases , 109 U.S. 3 (1883)). Second, the district court reasoned that, even if Congress could regulate some private conduct under Section 5 as a means of remedying violations of the Equal Protection Clause by the States, section 13981 was nonetheless invalid because it was not a closely tailored means to that end:

[Section 13981] is tailored to remedy conduct other than the conduct giving rise to the equal protection concern.[Section 13981] compensates victims for the violence directed against them because of their gender, not for the states' denial of equal protection. . . . The statute is overbroad: many women who do not suffer Fourteenth Amendment violations at the hands of the state system would still have a [section 13981] claim. A woman in a state with fair rape laws who is raped and whose rapist receives the maximum sentence may still have a [section 13981] claim. That woman may receive compensation via [section 13981] despite having suffered no denial of her equal protection rights. [Section 13981] is also too narrow: many women who suffer clear violations of their Fourteenth Amendment rights would not have a [section 13981] remedy, because the crime was not based on the woman's gender. These women would not receive any compensation despite the fact that the states clearly denied them equal protection of the laws.

Id . at 800. Finally, the district court concluded that section 13981 was not even aimed at remedying violations of the Equal Protection Clause by the States, primarily because it regulates the perpetrators of gender-motivated violence rather than the States themselves or those acting under color of state law. Accordingly, the district court concluded that "[n]o reasonable possibility exists that, in enacting [section 13981], Congress has enforced the Fourteenth Amendment mandate that `[n]o State shall . . . deny to any person within its juris- diction the equal protection of the laws,'" id . at 801 (quoting U.S. Const. amend. XIV, § 1), and that "[n]o reasonable possibility exists that [section 13981] will remedy any legitimate Fourteenth Amend- ment concern." Id .

The government and Brzonkala appealed this decision, and, on December 23, 1997, a divided panel of this court reversed the judg- ment of the district court, holding that section 13981 was a legitimate exercise of Congress' power under the Commerce Clause. 132 F.3d 949 (4th Cir. 1997). By order dated February 2, 1998, the full court vacated the judgment and opinion of that panel, and, on March 3, 1998, we reheard the case en banc .

II.

As a threshold matter, we must determine whether Brzonkala has stated a claim under section 13981 sufficient to withstand appellees' motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. We hold that Brzonkala has properly stated a claim under section 13981 against appellee Morrison. We do not reach, because it is unnecessary to do so, the question of whether her complaint prop- erly states a section 13981 claim against appellee Crawford.

Section 13981 provides a civil remedy to parties injured by "a crime of violence motivated by gender." 42 U.S.C.§ 13981(c). The statute defines the term "crime of violence" by reference to existing state and federal law. Id . § 13981(d)(2) (defining the term to include "an act or series of acts that would constitute a felony" "and that would come within the meaning of State or Federal offenses"). Such a crime is defined to be "motivated by gender" for the purposes of the statute when that crime is "committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender." Id . § 13981(d)(1); see also id . § 13981(e)(1) (no cause of action "for random acts of violence unrelated to gender or for acts that cannot be demonstrated, by a preponderance of the evi- dence, to be motivated by gender").

Crawford and Morrison concede that Brzonkala's complaint alleges that they have committed "crime[s] of violence" within the meaning of the statute. Cf . J.A. at 96-97 (complaint alleging that Mor- rison and Crawford's conduct toward Brzonkala violated Virginia criminal law in several respects). They challenge, however, Brzon- kala's allegation that they acted "because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender." 42 U.S.C. § 13981(d)(1).

Brzonkala has explicitly alleged that the defendants-appellees' actions "were motivated wholly by discriminatory animus toward her gender and were not random acts of violence." J.A. at 24. As it relates to Morrison, this allegation of gender motivation is supported and corroborated by Brzonkala's allegation that Morrison stated publicly that he "like[d] to get girls drunk and f*** the s*** out of them." Id . at 20. Although these allegations do not necessarily compel the con- clusion that Morrison acted from animus toward women as a class, and might not even be sufficient, without more, to defeat a motion either for summary judgment or for a directed verdict, we hold that they are sufficient to defeat Morrison's motion to dismiss. ³

So concluding, we are faced directly, as appellants urge, with the question whether section 13981 represents a constitutional exercise of Congress' power under either the Commerce Clause of Article I, Sec- tion 8, or Section 5 of the Fourteenth Amendment.

III.

After the Supreme Court's decision in United States v. Lopez , 514 U.S. 549 (1995), but before the Court's decision two years ago in City of Boerne v. Flores , 117 S. Ct. 2157 (1997), the appellants defended section 13981 primarily as a valid exercise of Congress' enforcement authority under Section 5 of the Fourteenth Amendment. Since the decision in City of Boerne , the appellants have resorted to defending the section primarily as a valid exercise of Congress' power under the Commerce Clause. Therefore, we address ourselves first to this defense of the statute.

In United States v. Lopez , the Supreme Court held that Congress had exceeded its power to regulate interstate commerce in enacting the Gun-Free School Zones Act of 1990 ("GFSZA"), 18 U.S.C. § 922(q). In so holding, the Court reaffirmed that, although the Com- merce Clause represents a broad grant of federal authority, that authority is not plenary, but subject to outer limits. See , e.g. , Lopez , 514 U.S. at 556 -57, 567-68. And although the Court reaffirmed that congressional power under the Commerce Clause is not limited solely to the regulation of interstate commerce per se , but extends to laws governing activities sufficiently related to interstate commerce to ren- der their regulation necessary and proper to the regulation of interstate commerce, the Court also substantially clarified the scope and the limits of Congress' Article I, Section 8 power. Under the principles articulated by the Court in Lopez , it is evident that 42 U.S.C. § 13981, like the Gun-Free School Zones Act, does not regulate an activity suf- ficiently related to interstate commerce to fall even within the broad power of Congress under the Commerce Clause.

In demarcating the limits of congressional power to regulate activi- ties that do not themselves constitute interstate commerce, the Court in Lopez made clear that such power does not extend to the regulation of activities that merely have some relationship with or effect upon interstate commerce, but, rather, extends only, as is relevant here, to those activities "having a substantial relation to interstate commerce, . . . i.e. , those activities that substantially affect interstate commerce." Lopez , 514 U.S. at 558 -59 (emphases added); accord id . at 559 ("[O]ur 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. We con- clude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity `substan- tially affects' interstate commerce." (citations omitted)). ⁴ Furthermore, the Court made explicit that whether an activity "sub- stantially affects" interstate commerce such that it may be regulated under the Commerce Clause "is ultimately a judicial rather than a leg- islative question." Id . at 557 n.2 (quoting Heart of Atlanta Motel, Inc. v. United States , 379 U.S. 241, 273 (1964) (Black, J., concurring)). Thus, the Court not only reaffirmed that the limits of the Commerce Clause are judicially enforceable, see also id . at 557 ("[T]he power to regulate commerce, though broad indeed, has limits that [t]he Court has ample power to enforce." (internal quotation and citation omit- ted)); id . at 566 (referring to "judicially enforceable outer limits" of the Commerce Clause); id . at 580 (Kennedy, J., concurring) (discuss- ing Court's "duty to recognize meaningful limits on the commerce power of Congress"), it also made clear, as its analysis confirms, that the "substantially affects" test does not contemplate a mere factual or empirical inquiry, but must be understood, in the final analysis, as a legal test, and the phrase "substantially affects interstate commerce" as one of legal art.

In clarifying the content of this legal test, the Court specifically identified two types of laws that it had upheld as regulations of activi- ties that substantially affect interstate commerce: (1) "regulations of activities that arise out of or are connected with a commercial transac- tion, which viewed in the aggregate, substantially affects interstate commerce," Lopez , 514 U.S. at 561 (majority), and (2) regulations that include a jurisdictional element to ensure,"through case-by-case inquiry," that each specific application of the regulation involves activity that in fact affects interstate commerce, id .

The Court also emphasized that, any dictum in its previous cases notwithstanding, see infra Part III.E, it had never extended the sub- stantially affects test to uphold the regulation of a noneconomic activ- ity in the absence of a jurisdictional element, see , e.g. , id . at 560 ("Even Wickard , which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved eco- nomic activity in a way that the possession of a gun in a school zone does not."); id . at 580 (Kennedy, J., concurring) ("[U]nlike the earlier cases to come before the Court here neither the actors nor their con- duct have a commercial character, and neither the purposes nor the design of the statute have an evident commercial nexus."). And it con- firmed that it was unwilling to follow "[t]he broad language" in cer- tain previous cases that had "suggested the possibility of additional expansion" of congressional authority under the Commerce Clause by extending that authority beyond the scope of its previous holdings, Lopez , 514 U.S. at 567 (majority) ("declin[ing] here to proceed any further"). Most importantly, the Court expressly held that because the Gun-Free School Zones Act "neither regulate[d] a commercial activ- ity nor contain[ed] a requirement that the possession be connected in any way to interstate commerce," id .,"it exceed[ed] the authority of Congress `[t]o regulate Commerce . . . among the several States . . .,'" id . at 551 (quoting U.S. Const. art. I, § 8, cl. 3) (ellipses in original). Accord id . at 567-68; cf . id . at 561 ("[GFSZA] 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. . . . It cannot, therefore , be sustained under our cases upholding regu- lations of activities that arise out of or are connected with a commer- cial transaction, which viewed in the aggregate, substantially affects interstate commerce." (emphasis added)).

That the Court's focus on the failure of the Gun-Free School Zones Act either to regulate economic activity or to include a jurisdictional element was intended to demarcate the outer limits-- or, at the very least, the presumptive outer limits, see infra Part III.C -- of congres- sional power under the substantially affects test is explicitly con- firmed throughout the majority and concurring opinions. See , e.g. , id . at 566 ("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 enumer- ated powers are interpreted as having judicially enforceable outer limits , congressional legislation under the Commerce Clause always will engender `legal uncertainty.'") (emphasis added); id . at 573-74 (Kennedy, J., concurring) (listing certain prior cases as "examples of the exercise of federal power where commercial transactions were the subject of regulation" and noting that "[t]hese and like authorities are within the fair ambit of the Court's practical conception of commer- cial regulation and are not called in question by our decision today"). And such an understanding of the case follows inescapably, as well, from the enormous emphasis placed by the Court -- essentially ignored by both the appellants and the dissent -- on the "commercial concerns that are central to the Commerce Clause," id . at 583, and on the corresponding distinction between regulation of commercial or economic activities and regulation of noncommercial, noneconomic activities, see , e.g. , id . at 627-28 (Breyer, J., dissenting) (recognizing the majority's "critical distinction between`commercial' and non- commercial `transaction[s]'"); id . at 608 (Souter, J., dissenting) (simi- lar); cf . Hoffman v. Hunt , 126 F.3d 575, 586-87 (4th Cir. 1997) ("The [ Lopez ] Court repeatedly pointed to a distinction between the regula- tion of, on the one hand, those activities that are commercial or eco- nomic in nature -- or arise out of or are connected with a commercial transaction -- and, on the other hand, those activities that are not. In the two instances in which it stated the controlling analysis, the Court focused on the fact that possession of a gun in a school zone was nei- ther itself an economic or commercial activity nor had any connection with such activity."). ⁵ (Text continued on page 19) state commerce.") (emphasis added); id . at 560 ("Where economic activ- ity substantially affects interstate commerce, legislation regulating that activity will be sustained.") (emphasis added); id . at 561 ("[GFSZA] 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.") (emphasis added); id . at 565-66 ("We do not doubt that Congress has authority under the Commerce Clause to regulate numer- ous commercial activities that substantially affect interstate commerce and also affect the educational process.") (emphasis added); id . at 567 ("The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.") (emphasis added); id . at 574 (Kennedy, J., concurring) (" 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. . . . 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.") (emphases added); id . at 577 ("Were the Federal Government to take over the regulation of entire areas of tra- ditional 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 illu- sory.") (emphasis added); id . at 583 (GFSZA regulates "an activity beyond the realm of commerce in the ordinary and usual sense of that term.") (emphasis added); id . (GFSZA could not be sustained "[a]bsent a stronger connection or identification with commercial concerns that are central to the Commerce Clause ") (emphasis added); id . at 595 (Thomas, J., concurring) (distinguishing regulation of "intrastate commerce that substantially affects interstate and foreign commerce" from regulation of "all activities that affect interstate commerce"); id . at 601 n.9 ("[C]ommercial character is not only a natural but an inevitable ground of Commerce Clause distinction.") (emphasis added; internal quotation marks and citation omitted).

This said, the dissent actually does completely ignore this distinction. In fact, so consciously does the dissent turn a blind eye to the Court's repeated distinction between regulations of economic and noneconomic activities that in its discursive treatment of Lopez the dissent does not as much as once -- not once -- cite to or quote even one of the score of ref- erences to this distinction in the Lopez opinions, except a single time

Accordingly, the dissent's assertion that the rule that Congress' power under the Commerce Clause is at least presumptively limited to regulating economic activities and promulgating regulations that include a jurisdictional element is an "unprecedented new rule of law," see infra at 184, is perplexing. For this is precisely the rule repeatedly articulated by the Supreme Court in Lopez , beginning with its holding in the very first paragraph of the opinion:

The [GFSZA] 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 . . . ." U.S. Const., Art. I, § 8, cl. 3.

Lopez , 514 U.S. at 551 (ellipses in original); compare infra at 185 (omitting second sentence and asserting that majority merely "con- tends" that this is the rule, while at the same time acknowledging that for this rule we rely upon quotation from Lopez ). Far from constitut- ing a "new" rule of law, this rule of law is the law of the land. ⁶

In contrast to the statutes that the Supreme Court has previously upheld as permissible regulations under the substantially affects test, see Lopez , 514 U.S. at 560 ; id . at 580 (Kennedy, J., concurring), but analogously to the Gun-Free School Zones Act, see id . at 551 (major- ity), section 13981 neither regulates an economic activity nor contains a jurisdictional element. Accordingly, it cannot be sustained on the authority of Lopez , nor any of the Court's previous Commerce Clause holdings, as a constitutional exercise of Congress' power to regulate interstate commerce.

Appellants do not contend that section 13981 regulates economic activity. Nor could they. The statute does not regulate the manufac- ture, transport, or sale of goods, the provision of services, or any other sort of commercial transaction. Rather, it regulates violent crime motivated by gender animus. Not only is such conduct clearly not commercial, it is not even economic in any meaningful sense. While some violent crimes, such as robbery, may be economically motivated and thus at least arguably "economic" in a loose sense, section 13981 is not directed toward such crimes, but instead is expressly limited to "crime[s] of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender." 42 U.S.C. § 13981(d)(1); accord id . § 13981(e)(1) ("Nothing in this section entitles a person to a cause of action . . . for random acts of violence unrelated to gender or for acts that cannot be demon- strated, by a preponderance of the evidence, to be motivated by gen- der . . . ."); see also S. Rep. No. 103-138, at 52 n.61 (1993) (listing "absence of any other apparent motive" among circumstantial indicia of gender motivation). The statute thus explicitly excludes from its purview those violent crimes most likely to have an economic aspect -- crimes arising solely from economic motives-- and instead addresses violent crime arising from the irrational motive of gender animus, a type of crime relatively unlikely to have any economic character at all.

That section 13981 may, on occasion, reach activity that arises in part from economic motives does not transform it into a statute regu- lating economic activity. For Lopez made clear that the Gun-Free School Zones Act regulated activity having "nothing to do with `com- merce' or any sort of economic enterprise, however broadly one might define those terms," Lopez , 514 U.S. at 561 , even though a ban on guns in school zones would appear on its face to regulate activity considerably more likely to arise from economic motivation than is the narrowly circumscribed conduct regulated by section 13981, and even though, as the Supreme Court was doubtless aware, the defen- dant in Lopez itself admitted that his criminal conduct was economi- cally motivated, see United States v. Lopez , 2 F.3d 1342, 1345 (5th Cir. 1993), aff'd , 514 U.S. 549 (1995) (defendant charged with violat- ing the GFSZA by delivering a gun to a student admitted that he had been promised $40 for the delivery).

Not only is violent crime motivated by gender animus not itself even arguably commercial or economic, it also lacks a meaningful connection with any particular, identifiable economic enterprise or transaction. Cf . Hoffman , 126 F.3d at 587-88 (finding that the Free- dom of Access to Clinic Entrances Act of 1994 regulated conduct -- protests -- that "is closely and directly connected with an economic activity" -- the operation of abortion clinics). Furthermore, unlike guns in school zones, violence arising from gender animus lacks even a meaningful connection with any specific activity that might argu- ably be considered economic or commercial in the loosest sense. Compare Lopez , 514 U.S. at 628 -30 (Breyer, J., dissenting) (arguing that GFSZA regulated conduct closely connected with the operation of schools, an arguably commercial activity), with Lopez , 514 U.S. at 565 (majority) (rejecting Justice Breyer's characterization of schools as commercial).

Finally, section 13981 cannot be sustained as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regu- lated." Id . at 561. Although section 13981 addresses private discrimi- nation, and other laws address discrimination in clearly economic contexts, the federal patchwork of antidiscrimination laws can hardly be characterized as a single, interdependent regulatory scheme aimed at commercial or economic activity. While such an understanding of section 13981 might be suggested by certain language in the commit- tee reports, see , e.g. , H.R. Conf. Rep. No. 103-711, at 385 (1994), reprinted in 1994 U.S. Code Cong. & Admin. News 1839, 1853 ("[C]urrent law provides a civil rights remedy for gender crimes com- mitted in the workplace, but not for crimes of violence motivated by gender committed on the street or in the home."), section 13981 and Title VII -- the statute to which the report apparently refers -- cannot reasonably be said to constitute a unified statutory scheme. While the two statutes share a general concern with discrimination, they address different kinds of conduct that only occasionally overlap -- gender- motivated violence on the one hand, employer discrimination on the other. Rather than creating an integrated regulatory scheme, each stat- ute is obviously written without regard for the concerns that animate the other. For example, section 13981 provides a remedy for gender- motivated violence in the workplace as well as on the street or at home, without regard for the victim's actual or potential employment status, and directly against the violent actor. Title VII, by contrast, provides a remedy only for gender discrimination that can be attri- buted to the fault of the employer, without regard to whether such dis- crimination takes the form of violent conduct, and it provides that remedy against the employer, who may or may not be the actual dis- criminator.

More importantly, even if the federal patchwork of antidiscrimina- tion laws could be characterized as a single, interdependent regulatory scheme, section 13981 itself does not regulate even arguably eco- nomic activity. And it is clear from the context in which the Lopez Court observed that the Gun-Free School Zones Act was not "an essential part of a larger regulation of economic activity," Lopez , 514 U.S. at 561 , that the Court did not intend by this statement to autho- rize the regulation of activity lacking any meaningful economic nexus pursuant to a comprehensive statutory scheme that also regulates eco- nomic activity. Rather, it is plain that the Court's language references its discussion of Wickard v. Filburn in the preceding paragraph, and clarifies the constitutional basis of that decision. See id . at 560-61 (discussing Wickard v. Filburn , 317 U.S. 111 (1942)). As the Court explained, Wickard , which it characterized as "perhaps the most far reaching example of Commerce Clause authority over intrastate activ- ity," id . at 560, upheld the application to homegrown wheat of a stat- ute "designed to regulate the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and shortages, and concomitant fluctuation in wheat prices." Id . Although the wheat at issue was not produced for sale, and therefore its production "m[ight] not be regarded as commerce" in the strictest sense, Wickard , 317 U.S. at 125 ( quoted in Lopez , 514 U.S. at 556 ), it was produced for human consumption, directly satisfying needs that would otherwise be filled by purchase or other commercial transaction, and was thus clearly economic in a general sense, see Lopez , 514 U.S. at 560 ("Even Wickard . . . involved economic activity in a way that the pos- session of a gun in a school zone does not."). The Court's character- ization of Wickard as a case involving economic activity thus makes explicit the Supreme Court's relatively broad understanding of such activity. Id . at 561 (economic activity includes not just commercial transactions per se , but also "activities that arise out of or are con- nected with a commercial transaction"); see also id . at 573-74 (Ken- nedy, J., concurring) (discussing Court's "practical conception of commercial regulation"); id . at 574 (discussing "imprecision of content-based boundaries" and rejecting narrow"18th-century" under- standing of commerce). And the Court's discussion reaffirms that when Congress enacts a general statutory framework regulating eco- nomic activity, its power is not limited to the regulation only of inter- state economic activity, but extends to the regulation of purely intrastate economic activity as well. Cf . United States v. Robertson , 514 U.S. 669, 671 (1995) (per curiam) ("The `affecting commerce' test was developed in our jurisprudence to define the extent of Con- gress's power over purely intra state commercial activities that none- theless have substantial inter state effects.") (second emphasis added); Lopez , 514 U.S. at 559 ("[W]e have upheld a wide variety of intrastate economic activity where we have concluded that activity substantially affected interstate commerce." (emphases added)). But the decision does not, in such circumstances, authorize the regulation of intrastate conduct falling outside even the Court's relatively gener- ous conception of economic activity. ⁷

It follows, then, that section 13981, even more clearly than the Gun-Free School Zones Act struck down in Lopez , does not fall "within the fair ambit of the Court's practical conception of commer- cial regulation," Lopez , 514 U.S. at 573 -74 (Kennedy, J., concurring), but is, rather, a "statute that by its terms has nothing to do with `com- merce' or any sort of economic enterprise, however broadly one might define those terms," Lopez , 514 U.S. at 561 (majority). To hold otherwise would divest the words `commerce' and`economic' of any real meaning. Cf . id . at 565 (rejecting definition of "commercial" activity broad enough to encompass the operation of schools as "lack- [ing] any real limits because, depending on the level of generality, any activity can be looked upon as commercial"). Accordingly, sec- tion 13981 cannot be sustained on the authority of cases such as Wickard , which have upheld "regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." Id . at 561.

Similarly, and as appellants concede, section 13981 does not have an "express jurisdictional element which might limit its reach to a dis- crete set of [gender-motivated violent crimes] that additionally have an explicit connection with or effect on interstate commerce." Id . at 562. Although the criminal statutes enacted by Congress as part of the Violence Against Women Act predicate liability on the crossing of state lines or the entering or leaving of Indian country, see 18 U.S.C. § 2261 (interstate domestic violence); id . § 2262 (interstate violation of a protective order), section 13981 includes no similar jurisdictional requirement, see 42 U.S.C. § 13981(b)-(c) (extending cause of action to "[a]ll persons within the United States" who are victims of gender- motivated crime). Nor does the statute include any language which could possibly be construed to constitute such a jurisdictional ele- ment. Cf . United States v. Bass , 404 U.S. 336, 349 (1971) (construing statute prohibiting felon from receiving, possessing, or transporting any firearm "in commerce or affecting commerce" to require addi- tional nexus to interstate commerce); Pennsylvania Dep't of Corrections v. Yeskey , 118 S. Ct. 1952, 1956 (1998) (reasoning that unambiguous statute cannot be construed to avoid constitutional con- cerns). Accordingly, section 13981 cannot be sustained as a statute that contains a jurisdictional element "which would ensure, through case-by-case inquiry, that the [gender-motivated violent act] in ques- tion affects interstate commerce." Lopez , 514 U.S. at 561 ; cf . United States v. Cobb , 144 F.3d 319, 321-22 (4th Cir. 1998); United States v. Wells , 98 F.3d 808, 810-11 (4th Cir. 1996).

Because section 13981 neither regulates an economic activity nor includes a jurisdictional element, it cannot be upheld on the authority of Lopez or any other Supreme Court holding demarcating the outer limits of Congress' power under the substantially affects test. See Lopez , 514 U.S. at 551 ("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 . . . .'") (quoting U.S. Const. art. I,§ 8, cl. 3) (ellipses in origi- nal).

Even if these two categories of permissible congressional regula- tions demarcate not the absolute, but only the presumptive outer lim- its of congressional power under the substantially affects test, such that Congress may regulate noneconomic activities absent jurisdic- tional elements in at least some circumstances -- a proposition not only unsupported by Supreme Court holding, see Lopez , 514 U.S. at 560 ; id . at 580 (Kennedy, J., concurring), but seemingly eschewed by the Court in Lopez , see , e.g. , Lopez , 514 U.S. at 551 , 560, 567 -- we hold that the Commerce power does not extend so far as to support the regulation at issue in this case. A contrary holding would violate the "first principles" of a Constitution that establishes a federal gov- ernment of enumerated powers, id . at 552, principles that the Lopez Court believed so important to its constitutional analysis that it both began and ended its opinion with a full discussion of them, id . at 553- 58, 564-68, and that even the government is forced to concede lie at the heart of the Court's reasoning in Lopez , see Reply Br. of Interve- nor United States at 14 ("The [ Lopez ] decision thus turned largely on the threat posed by the statute to principles of federalism."); Supp. Br. of Intervenor United States at 4 ("Federalism concerns were, of course, crucial in Lopez .").

Consistent with these principles, Lopez affirms that we must evalu- ate carefully the implications of our holdings upon our federal system of government and that we may not find an activity sufficiently related to interstate commerce to satisfy the substantially affects test in reliance upon arguments which, if accepted, would eliminate all limits on federal power and leave us "hard pressed to posit any activ- ity by an individual that Congress is without power to regulate." Lopez , 514 U.S. at 564 ; see also id . at 567 (admonishing that courts are not 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"). This is so especially when the regulated activity falls within an area of the law "where States historically have been sovereign," id . at 564, and coun- tenance of the asserted federal power would blur"the boundaries between the spheres of federal and state authority" and obscure "polit- ical responsibility," id . at 577 (Kennedy, J. concurring).

Lopez , therefore, is emphatic that the scope of the interstate com- merce power

"must be considered in the light of our dual system of gov- ernment and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effec- tually obliterate the distinction between what is national and what is local and create a completely centralized govern- ment."

Lopez , 514 U.S. at 557 (quoting NLRB v. Jones & Laughlin Steel Corp. , 301 U.S. 1, 37 (1937)); see also id . at 567 (quoting A.L.A. Schechter Poultry Corp. v. United States , 295 U.S. 495, 554 (1935) (Cardozo, J., concurring)) (noting that everything affects interstate commerce to some degree, but rejecting "view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce" (internal quotation marks omit- ted)); id . at 567-68 (refusing to rely on arguments that obliterate "dis- tinction between what is truly national and what is truly local"); id . at 580 (Kennedy, J., concurring) ("In a sense any conduct in this inter- dependent world of ours has an ultimate commercial origin or conse- quence, but we have not yet said the commerce power may reach so far.").

We could perhaps reconcile with these "first principles" of federal- ism a holding that Congress may regulate, even in the absence of jurisdictional elements, noneconomic activities that are related to interstate commerce in a manner that is clear, relatively direct, and distinct from the type of relationship that can be hypothesized to exist between every significant activity and interstate commerce. See , e.g. , United States v. Bird , 124 F.3d 667, 677 n.11 (5th Cir. 1997) ("[I]n determining whether the regulated intrastate activity substantially affects interstate commerce, `substantial' must be understood to have reference not only to a quantitative measure but also to qualitative ones; effects which are too indirect, remote, or attenuated -- or are seen only by piling `inference upon inference'-- are not substan- tial."); cf . Hoffman , 126 F.3d at 587 (holding that obstruction of abor- tion clinic entrances "is closely connected with, and has a direct and profound effect on, the interstate commercial market in reproductive health care services").

In this case, however, we can discern no such distinct nexus between violence motivated by gender animus and interstate com- merce. Indeed, to sustain section 13981 as a constitutional exercise of the Commerce power, not only would we have to hold that congres- sional power under the substantially affects test extends to the regula- tion of noneconomic activities in the absence of jurisdictional elements, but we would also have to conclude that violence motivated by gender animus substantially affects interstate commerce by relying on arguments that lack any principled limitations and would, if accepted, convert the power to regulate interstate commerce into a general police power.

Echoing the government's arguments in Lopez , the appellants argue that violence motivated by gender animus imposes medical and legal costs upon its victims; discourages those who fear such violence from traveling, working, or transacting business at times or in places that they consider unsafe (thereby deterring some interstate travel, employment, and transactions); and, as a result, inhibits the productiv- ity of its actual or potential victims and decreases the supply and demand for interstate products. See Br. of Appellant Brzonkala at 37; cf . Supp. Br. of Appellant Brzonkala at 3 (noting effects of gender- motivated violence "on employment, health care, housing, criminal justice, interstate travel and consumer spending"). These arguments closely resemble, and are functionally equivalent to, the arguments advanced by the government in Lopez :

The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insur- ance, those costs are spread throughout the population. Sec- ond, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handi- capped educational process, in turn, will result in a less pro- ductive citizenry. That, in turn, would have an adverse effect on the Nation's economic well-being.

Lopez , 514 U.S. at 563 -64 (citations omitted). As in Lopez , appellants rely in essence on the costs of violent crime (including the deterrence of interstate travel and other similar interstate activities) and on decreased national productivity (including reduced employment, pro- duction, and demand), both of which ultimately affect the national economy, and presumably interstate commerce as well. But as the arguments are the same, so also does the Supreme Court's categorical rejection in Lopez of such attenuated links to interstate commerce again control:

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. Similarly, under the Government's "national productivity" reasoning, Congress could regulate any activ- ity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of [the GFSZA], it is diffi- cult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.

Id . at 564 (citation omitted); see also id. at 600 (Thomas, J., concur- ring) ("When asked at oral argument if there were any limits to the Commerce Clause, the government was at a loss for words."). ⁸ It is unsurprising that appellants must resort to such arguments. Just as it is impossible to link violence motivated by gender animus with any particular, identifiable economic transaction or enterprise, see supra Part III.B.1, it is similarly impossible to link such violence with a particular interstate market or with any specific obstruction of interstate commerce. Cf . Hoffman , 126 F.3d at 587 (noting close and direct relationship between obstruction of abortion clinic entrances and the interstate commercial market in reproductive health care ser- vices); Leshuk , 65 F.3d at 1112 (noting relationship between the man- ufacture of marijuana and the interstate market in illegal drugs). Rather, to the extent violence motivated by gender animus affects interstate commerce, it does so only in the same way that any other significant problem does. Like violence in schools, violent crime gen- erally, and many other less visible though still significant problems, violent crime motivated by gender animus undoubtedly imposes costs on, and decreases the productivity of, its victims. As with other such problems, to the extent violent crime motivated by gender animus is widespread, these costs and productivity losses in the aggregate will ultimately, though indirectly, affect the national economy. Cf ., e.g. , Carol Krucoff, Get Moving , Wash. Post, Aug. 12, 1997, Health Sec- tion, at 12 (quoting director of Center for Disease Control as predict- ing annual savings of $4 billion in medical costs if only one-fourth of sedentary people were to exercise); 140 Cong. Rec. S14211 (1994) (statement of Sen. Hatfield) (estimating annual cost of accidents, medical problems, and reduced productivity, due to insomnia at between $92.5 and $107.5 billion). And, presumably, any adverse effect on the national economy will eventually also affect interstate commerce.

However, though the Supreme Court has, in cases such as Wickard , relied on relatively sweeping and permissive reasoning of this kind -- including looking to the aggregate effects of entire classes of activi- ties and indulging in attenuated chains of inferences -- to find that intrastate economic activity substantially affects interstate commerce, Lopez clearly forecloses either reliance upon such authority or appli- cation of such analysis to sustain congressional regulation of noneconomic activities such as the conduct reached by section 13981. Compare Lopez , 514 U.S. at 558 ("[W]here a general regulatory stat- ute bears a substantial relation to commerce , the de minimis character of individual instances arising under that statute is of no conse- quence." (citation omitted; emphasis added)), with id . at 561 (explain- ing that, because GFSZA was "a criminal statute" having "nothing to do with `commerce' or any sort of economic enterprise," it could not "be sustained under [the Court's] cases upholding regulation of activities that arise out of or are connected with a commercial trans- action, which viewed in the aggregate , substantially affects interstate commerce." (emphasis added)); see also id . at 567 ("The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere , substantially affect any sort of interstate commerce." (emphases added)); id . at 563 (similar); id . at 567 (refusing to "pile inference upon inference" to find a substan- tial effect on interstate commerce); id . at 565 (rejecting, as exces- sively permissive, Justice Breyer's three-step analysis of the relationship between gun-related crime and interstate commerce). To extend such reasoning beyond the context of statutes regulating eco- nomic activities and uphold a statute regulating noneconomic activity merely because that activity, in the aggregate, has an attenuated, though real, effect on the economy, and therefore presumably on interstate commerce, would be effectively to remove all limits on fed- eral authority, and to render unto Congress a police power impermis- sible under our Constitution. See , e.g. , id . at 564. ⁹ This case, in fact, draws into sharp relief the sweeping implications for our federal system of government that would follow were we, in reliance on such reasoning, to extend congressional power under the substantially affects test to the regulation of noneconomic conduct remote from interstate commerce. For here, not only could the logic of the arguments upon which the appellants must rely justify congres- sional regulation of any significant activity, but the regulation in sup- port of which these arguments are marshaled also intrudes upon areas of the law "to which States lay claim by right of history and exper- tise." Id . at 583 (Kennedy, J., concurring). Thus, in this case, concerns of federalism, far from hypothetical, are immediate and concrete. First, although 42 U.S.C. § 13981(c) provides a civil remedy, the underlying conduct to which the remedy attaches is violent crime, see id . § 13981(d)(2), conduct that has traditionally been regulated by the States through their criminal codes and laws of intentional torts. Compare id . (defining "crime of violence" through incorporation of state and federal criminal law), with Lopez , 514 U.S. at 561 n.3 ("Under our federal system, the States possess primary authority for defining and enforcing the criminal law. . . . When Congress criminal- izes conduct already denounced as criminal by the States, it effects a change in the sensitive relation between federal and state criminal jurisdiction." (citations and internal quotation marks omitted; empha- sis added)). Appellants contend that section 13981 neither duplicates state criminal laws nor overrides these or any other state laws, but merely provides a civil remedy for conduct that is already proscribed by the States. Therefore, they argue, the provision does not implicate the sensitive balance between state and federal criminal authority. ¹⁰ Even were appellants' description of section 13981 wholly accurate, we would reject their conclusion. For when the federal government provides a remedy for violent crime in addition to that provided by the States, it both involves itself in the punishment of such crime and increases the total penalty for such crime beyond that provided by the laws of the States. ¹¹ Moreover, this federal involvement will inescap- ably lead to changes in the allocation of state law enforcement and judicial resources, and even in substantive state law, by altering the underlying enforcement realities against which all such allocative and legislative decisions are made. Thus, it is clear that the balance between federal and state responsibility for the control of violent crime is implicated not only by federal criminal statutes, but also by any federal sanction for such crime, even in the form of civil remedy. See Chief Justice William H. Rehnquist, Welcoming Remarks: National Conference on State-Federal Judicial Relationships , 78 Va. L. Rev. 1657, 1660 (1992) (noting section 13981's"potential to create needless friction and duplication among the state and federal sys- tems"); cf . Lopez , 514 U.S. at 582 (Kennedy, J., concurring) (approv- ing argument that "injection of federal officials into local problems causes friction and diminishes accountability of state and local gov- ernments" (citation omitted)).

As its proclamation of a new, substantive right"to be free from crimes of violence motivated by gender" suggests, however, section 13981 does not merely provide a federal remedy for certain violent conduct defined by the States as felonious. 42 U.S.C. § 13981(b). Although the statute does provide a remedy for such conduct, it also provides a remedy for certain federally defined violent felonies, "whether or not those acts were committed in the special maritime, territorial, or prison jurisdiction of the United States." Id . § 13981(d)(2)(A). That is, under the plain language of the statute, a plaintiff may sue for gender-motivated violent conduct that would, if it occurred within an area of special federal jurisdiction, constitute a felony under the relatively comprehensive criminal code adopted by Congress to govern such areas, see , e.g. , 18 U.S.C. §§ 1111, 1118 (murder); id . § 1112 (manslaughter); id . § 1113 (attempted murder and manslaughter); id . § 113 (assault); id . § 114 (maiming); id .§ 2241 (rape); id . § 1201 (kidnapping); id . § 81 (arson), even when the con- duct occurs outside such a federal enclave, and even if the relevant federal law differs substantively from the law of the state in which the conduct occurs. Indeed, the apparent purpose of this provision is to create a minimum level of substantive protection-- tied to federal definitions of violent crimes and therefore subject to ready congres- sional calibration -- that is unaffected by individual variation among the criminal laws of the several States.

Further, to the extent that section 13981's remedy is limited to vio- lent acts constituting felonies as defined by state law, the statute pro- vides a remedy for such conduct, "whether or not those acts have actually resulted in criminal charges, prosecution, or conviction," 42 U.S.C. § 13981(d)(2)(A); id . § 13981(e)(2) (same); cf . id . § 13981(d)(2)(B) (abrogating certain defenses that may exist under state law), and in many instances in which such violence would not be actionable under state tort law, see id .§ 13981(c)-(d)(2)(B) (pro- viding cause of action in cases in which a civil remedy may not exist under state law); 28 U.S.C. § 1658 (providing four-year statute of lim- itations which is considerably longer than the limitations periods for intentional torts in most States); cf . 42 U.S.C. § 1988(b) (successful section 13981 plaintiff may recover attorneys' fees).

Thus, not only does section 13981 provide a federal remedy for violent crime in addition to those remedies already provided by the laws of the States -- thereby increasing the total penalty for such crime -- it also provides such a remedy for violence that the States would leave unpunished, whether for reasons of state criminal-law policy, prosecutorial discretion, or state tort-law policy. And the stat- ute deliberately disregards the limits of state criminal and civil law, purportedly in response to the States' failure properly to enforce their criminal and tort laws against gender-motivated violent criminals. See infra Parts III.D.2, IV. By responding to this alleged failure of the States not with a remedy against the States or their officers, as would a civil rights statute properly enacted pursuant to Section 5 of the Fourteenth Amendment, see infra Part IV.A, but instead with a rem- edy against the violent criminals themselves, Congress not only has encroached upon the States' ability to determine when and how vio- lent crime will be punished, see Lopez , 514 U.S. at 581 (Kennedy, J., concurring) (noting States' abilities "as laboratories for experimenta- tion to devise various solutions" for problems whose "best solution is far from clear"); id . at 583 (GFSZA impermissibly "forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and experience"), but in so doing has blurred the boundary between federal and state responsibility for the deterrence and punishment of such crime. Accordingly, the citizens of the States will not know which sovereign to hold accountable for any failure to address adequately gender- motivated crimes of violence. See Lopez , 514 U.S. at 576 -77 (Ken- nedy, J., concurring) ("If . . . the Federal and State Governments are to control each other . . . and hold each other in check . . . citizens must have some means of knowing which of the two governments to hold accountable for the failure to perform a given function. Federal- ism serves to assign political responsibility, not to obscure it." (cita- tion omitted)); cf . Printz v. United States , 117 S. Ct. 2365, 2377 (1997) (noting that the Constitution contemplates that "a State's gov- ernment will represent and remain accountable to its own citizens"); New York v. United States , 505 U.S. 144, 168-69 (1992) ("Accountability is thus diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not pre-empted by federal regulation." (citation omitted)). Moreover, it is undisputed that a primary focus of section 13981 is domestic violence, a type of violence that, perhaps more than any other, has traditionally been regulated not by Congress, but by the several States. See , e.g. , infra at 49-50 (discussing congres- sional findings on the extent and effects of domestic violence). Though such violence is not itself an object of family law -- an area of law that clearly rests at the heart of the traditional authority of the States, see Lopez , 514 U.S. at 564 -- issues of domestic violence fre- quently arise from the same facts that give rise to issues such as divorce and child custody, which lie at the very core of family law. Although section 13981 explicitly precludes the federal courts from exercising the supplemental jurisdiction that might otherwise extend to such matters, see 42 U.S.C. § 13981(e)(4), the fact that Congress found it necessary to include such a jurisdictional disclaimer confirms both the close factual proximity of the conduct regulated by section 13981 to the traditional objects of family law, cf . United Mine Workers v. Gibbs , 383 U.S. 715, 725 (1966) (holding that supplemen- tal jurisdiction extends to state law claims arising from the same "common nucleus of operative fact" as federal claims); 28 U.S.C. § 1367 (codifying this aspect of Gibbs ), and the extent of section 13981's arrogation to the federal judiciary of jurisdiction over contro- versies that have always been resolved by the courts of the several States. In the words of the Chief Justice of the United States, section 13981 creates a "new private right of action so sweeping, that the leg- islation could involve the federal courts in a whole host of domestic relations disputes." Chi. Daily L. Bull., Jan. 2, 1992, at 2 (quoting from Chief Justice Rehnquist's 1991 report on the federal judiciary). ¹² Section 13981 also sharply curtails the States' responsibility for regulating the relationships between family members by abrogating interspousal and intrafamily tort immunity, the marital rape exemp- tion, and other defenses that may exist under state law by virtue of the relationship that exists between the violent actor and victim. See § 13981(d)(2)(B); cf . Br. of Intervenor United States at 12 (noting that, "as of 1990, seven states still did not include marital rape as a prosecutable offense, and an additional 26 states allowed prosecutions only under restricted circumstances"). Although Congress may well be correct in its judgment that such defenses represent regrettable public policy, the fact remains that these policy choices have tradi- tionally been made not by Congress, but by the States. By entering into this most traditional area of state concern, Congress has not only substantially reduced the States' ability to calibrate the extent of judi- cial supervision of intrafamily violence, see Lopez , 514 U.S. at 581 (Kennedy, J., concurring), but has also substantially obscured the boundaries of political responsibility, freeing those States that would deny a remedy in such circumstances from accountability for the pol- icy choices they have made, see id . at 576-77.

The sweeping intrusion of section 13981 into these areas of tradi- tional state concern well illustrates the essentially limitless nature of congressional power that would follow if we were to accept, as suffi- cient to justify federal regulation under the Commerce Clause, the type of connection with interstate commerce on which appellants rely in this case. Under such an understanding, the only conceivable limit on congressional power to regulate an activity would be the signifi- cance of that activity, because any significant activity or serious prob- lem will have an ultimate, though indirect, effect upon the economy, and therefore, at least presumptively, upon interstate commerce as well. While we do not question the significance of the problems posed by violence arising from gender animus, Lopez confirms that such significance, standing alone, simply does not provide a meaningful limitation on federal power, and that a problem does not become a constitutionally permissible object of congressional regulation under the Commerce Clause merely because it is serious. See Lopez , 514 U.S. at 565 (rejecting Justice Breyer's argument that because "gun- related violence is a serious problem" with an ultimate effect on "trade and commerce," it may be regulated under the Commerce Clause). To hold otherwise would require us to adopt a purely quanti- tative view of the substantially affects test that would, in light of the relative institutional competencies of the legislature and the judiciary, be difficult to square either with the Lopez Court's clarification of this test as "ultimately a judicial rather than a legislative question," id . at 557 n.2 (citation omitted), or with the "independent evaluation of con- stitutionality under the Commerce Clause" that Lopez requires of the courts, id . at 562; see also Bird , 124 F.3d at 677 n.11 (noting qualita- tive aspects of substantially affects test under Lopez ). As this case illustrates, to adopt such an understanding of Congress' power to reg- ulate interstate commerce would be to extend federal control to a vast range of problems falling within even the most traditional areas of state concern -- problems such as violent crime generally, educa- tional shortcomings, and even divorce, all of which are significant and as a result unquestionably affect the economy and ultimately inter- state commerce. Cf . Lopez , 514 U.S. at 561 n.3 ("Under our federal system, the States possess primary authority for defining and enforc- ing the criminal law.") (citation omitted)); Northern Sec. Co. v. United States , 193 U.S. 197, 402 (1904) (Holmes, J., dissenting) ("Commerce depends upon population, but Congress could not, on that ground, undertake to regulate marriage and divorce."). Such a sweeping interpretation of the Congress' power would arrogate to the federal government control of every area of activity that matters, reserving to the States authority over only the trivial and the insignifi- cant.

After Lopez , it is simply insufficient to contend, as does the dissent, that principles of federalism are implicated only if a federal law " directly supersede[s] official state action in an area of traditional state concern ." See infra at 207; see also id . at 204 (asserting that " Lopez stands for the proposition that Commerce Clause legislation may be unconstitutional if it directly supersedes official state action in an area of traditional state concern"); id . at 207 ("When a federal statute directly supersedes official state action in an area of traditional state concern, then (and only then) may a court properly consider whether the rationale supporting the statute contains an inherent limit- ing principle."). Plainly put, neither the language nor the logic of Lopez permits, much less supports, such a parsimonious view of the rights of the States in our federal system. If anything, the Court in Lopez , as it has been over the past ten years or so, was at pains to express quite the opposite view, especially where, as here, the reason- ing advanced in support of a given federal intrusion upon the preroga- tives of the States would, if summoned, support a power in the Congress that is, for all intents and purposes, without limit. See , e.g. , Lopez , 514 U.S. at 564 ("Under the theories that the Government presents . . . it is difficult to perceive any limitation on federal power, even in areas where States historically have been sovereign."); id . at 567 (rejecting reasoning "that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States"); id . at 580 (Kennedy, J., concurring) ("[W]e must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern."); id . at 583 (noting "tendency of this statute to displace state regulation in areas of tradi- tional state concern" and explaining that "[w]hile 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 sig- nificant" and "contradicts the federal balance").

In short, to hold that an attenuated and indirect relationship with interstate commerce of the sort asserted here is sufficient to bring within Congress' power to regulate such commerce the punishment of gender-motivated violent crime, an activity that has nothing to do with commerce and that has traditionally been regulated by the States, we would have to do what the Supreme Court has never done, and what the Lopez Court admonished us not to do: "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" and "conclude that the Constitution's enu- meration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local." Id . at 567-68 (citations omitted). Like the Supreme Court, "[t]his we are unwilling to do." Id . at 568.

To the extent that appellants even acknowledge the precedential force of Lopez , see infra Part III.E, they attempt to distinguish that decision primarily in two ways. First, they argue that here, unlike in Lopez , the relationship between the regulated activity and interstate commerce upon which they rely is not just identified by them alone, but is also documented by congressional findings to which we are obliged to defer. Second, they contend that section 13981 regulates conduct implicating civil rights, that civil rights is an area of manifest federal concern, and that therefore the regulation of the conduct here, despite its noneconomic character and its lack of a close connection to interstate commerce, does not offend the first principles of federal- ism. Appellants argue that these distinctions are sufficient grounds for upholding the constitutionality of section 13981 under the Commerce Clause. We disagree.

It is true that section 13981, unlike the Gun-Free School Zones Act as originally enacted, is accompanied by congressional findings regarding the extent and effects of the problem it addresses. However, though Congress' legislative expertise is entitled to deference, Lopez is unmistakable that our deference is not, and cannot be, absolute. And the principles articulated in that decision leave little doubt that the findings here are simply inadequate to sustain section 13981 as a constitutional exercise of Congress' power under Article I, Section 8.

(a)

The Lopez Court acknowledged that "legislative findings, and indeed even congressional committee findings," may assist the courts in determining constitutionality under the Commerce Clause. Lopez , 514 U.S. at 562 ; see also id . at 563 (noting the lack of findings that "would enable [the Court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye"). The Court emphasized, however, that "[s]imply because Congress may conclude that a particular activity substantially affects interstate com- merce does not necessarily make it so." Id . at 557 n.2 (citation omit- ted). Rather, because the question of whether particular activities "affect interstate commerce sufficiently to come under the constitu- tional power of Congress to regulate them is ultimately a judicial rather than a legislative question," id ., we cannot sustain a statute solely on the strength of a congressional finding as to the factual rela- tionship between a particular activity and interstate commerce. Instead, we must undertake an "independent evaluation" to determine whether, as a legal matter, the substantially affects test is satisfied. Id . at 562 (noting that congressional findings may be considered "as part of our independent evaluation of constitutionality under the Com- merce Clause" (emphases added)); cf . id . at 563 (stating that congres- sional findings "enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce" (emphasis added)); id . at 559 ("[W]e have upheld a variety of con- gressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected interstate com- merce." (emphasis added)).

Appellants concede, as they must, that, under Lopez , findings are not "conclusive," Reply Br. of Intervenor United States at 12, "that a court is not bound by congressional findings," Supp. Br. of Intervenor United States at 4, that "[C]ongress cannot, by fiat, establish a sub- stantial effect on interstate commerce where none exists," id ., and that "a court must conduct an independent investigation," id .; cf . Br. of Appellant Brzonkala at 35 n.29 (acknowledging "[t]he Lopez deci- sion's recognition that a law's constitutionality ultimately is a judicial decision").

Despite such lip service to the Court's explicit pronouncements in Lopez that congressional findings are not conclusive of the constitu- tional inquiry, however, appellants contend that the Gun-Free School Zones Act's primary and dispositive flaw was that Congress did not document the connection between the conduct regulated by that Act and interstate commerce. In support of this contention, appellants cite the Lopez Court's cursory mention of the lack of congressional find- ings that might have "enable[d] [it] to evaluate the legislative judg- ment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye," Lopez , 514 U.S. at 563 . They then construe that Court's refusal, four pages later, to sustain the government's contentions in that case by "pil[ing] inference on inference," id . at 567, as referring to the lack of congressional documentation of the regulated activity's affect on interstate commerce. ¹³ According to appellants, had Con- gress provided such documentation, the Court could have sustained the statute without resorting to inference, and would in fact have done so. ¹⁴

Lopez , however, cannot reasonably be understood to have turned on a mere lack of documentation of the effects of the regulated con- duct on interstate commerce. Although the Supreme Court noted that findings could aid it in identifying an effect on interstate commerce that was not "visible to the naked eye," Lopez , 514 U.S. at 563 , the Court never indicated that it did not understand the relationship alleged to exist between guns in school zones and interstate com- merce. While the Court did not consult legislative materials to illumi- nate the contours of this relationship, both the government and the principal dissent detailed how such guns affected interstate com- merce. See , e.g. , id . at 618-25 (Breyer, J., dissenting). The Court's lucid recitation of the arguments of both the government, see Lopez , 514 U.S. at 563 -64 (majority) (reciting government's arguments), and the principal dissent, id . at 564-66 (reciting Justice Breyer's argu- ments), leaves no doubt that it understood the nature of the relation- ship asserted. Further, the Court nowhere questioned the factual validity of the arguments made by either the government or Justice Breyer. See id . at 563-66; see also id . ("Although Justice Breyer argues that acceptance of the Government's rationale would not authorize a general police power, he is unable to identify any activity that the States may regulate but Congress may not."); id . at 600 (Thomas, J., concurring) (same).

Had the Court's decision turned on either lack of understanding or skepticism of the factual link between guns in school zones and inter- state commerce, the Court's failure to consult the massive documenta- tion available regarding those effects would have been inexplicable. Not only did the Court have available before it a wealth of legislative, governmental, and other materials documenting these links, see , e.g. , id . at 631-34 (Breyer, J., dissenting) (appendix listing numerous hear- ings, transcripts, committee reports, and other legislative materials bearing directly on these links); id . at 634-36 (listing other govern- mental materials); id . at 636-44 (listing other readily available materi- als), it also had before it explicit congressional findings that (1) crime was a nationwide problem exacerbated by the interstate movement of drugs, guns, and criminal gangs; (2) firearms and their component parts move easily in interstate commerce, and guns have been found in increasing numbers around schools; (3) citizens fear to travel through certain parts of the country due to concern about violent crime and gun violence; (4) the occurrence of violent crime in school zones has resulted in a decline in the quality of education, which in turn has had an adverse impact on interstate commerce; and (5) the States are unable to curb gun-related crime on their own. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103- 322, § 320904, 108 Stat. 1796, 2125. To be sure, these findings had been added to the statute after its adoption, and the government did not rely on them "in the strict sense of the word." Lopez , 514 U.S. at 563 n.4 (citation omitted). But had the Court desired only legislative corroboration of the government's arguments, it could easily have consulted these findings, and presumably would have done so. As the government explained, "at a very minimum [the findings] indicate that reasons can be identified why Congress wanted to regulate this particular activity." Id . (citation omitted). The Court's indifference both to these findings and to the massive documentation assembled by the principal dissent confirms that the Court did not reject as insufficient the relationship between guns in school zones and interstate commerce asserted by the government and the dissents because it deemed that relationship opaque or dubious, but rather that it did so for the reason that it explicitly stated: accept- ing such indirect and attenuated relationships as sufficient to justify congressional regulation would render unto Congress a power so sweeping as to leave the Court "hard pressed to posit any activity by any individual that Congress is without power to regulate." Lopez , 514 U.S. at 564 .

It is clear, therefore, that appellants fundamentally misunderstand the Lopez Court's refusal "to pile inference upon inference" to sustain the Gun-Free School Zones Act. Id . at 567. When quoted in full rather than as an isolated fragment -- as appellants would have it -- the Court's statement is of unmistakable import:

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 Com- merce 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. 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 pow- ers does not presuppose anything not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.

Id . at 567-68 (citations omitted). Rather than referring to the Court's passing mention of the original statute's lack of findings four pages earlier, this statement instead represents a powerful summary of an intervening three-and-a-half-page discussion emphatically reaffirming the existence of meaningful substantive limits on congressional authority under the Commerce Clause. The indisputable abundance of the materials available to the Court in Lopez detailing the real, though indirect, effect of guns in school zones on interstate commerce strongly suggests that appellants' argu- ment really is not that Lopez turned on a simple lack of documenta- tion, but rather that it turned on a lack of legislative formalities. Thus, despite their concessions, see supra at 41, it is evident that appellants regard legislative formalities such as findings as dispositive -- at least as a practical matter -- of whether an activity may be regulated under the substantially affects test. In fairness to them, however, they are far more abashed in their reliance upon congressional findings than are our dissenting colleagues, who are quite candid about their prostrate deference to congressional pronouncements. The dissenters begin and end their Commerce Clause analysis by posing the dispositive ques- tion as "whether . . . Congress exceeded its constitutional authority in enacting" section 13981. In the immediately following two sentences, they then provide what, from their following discussion, we know is for them the answer -- namely, that Congress did not exceed its authority, because "Congress directly addressed this very question" and on the basis of findings and evidence concluded that, in fact, it did act constitutionally in enacting section 13981. See infra at 173. ¹⁵ And only as an afterthought (literally) -- and, for it, an empty one at that, see id . at 70-72 -- does the dissent even acknowledge that the courts must ensure compliance with the Constitution. Id . at 173-174, 191. So far from Lopez , appellants would not even dare to venture.

Appellants' position (and a fortiori the dissent's), however, flatly contradicts the Supreme Court's opinion in Lopez . While an under- standing of legislative formalities as dispositive in practice if not the- ory would follow from the reasoning initially employed by the Fifth Circuit in striking down the Gun-Free School Zones Act, see Lopez , 2 F.3d at 1363 ("Practically speaking, [congressional] findings almost always end the matter."); id . at 1365-66 (holding that Congress "ha[d] not taken the steps necessary to demonstrate that such an exercise of power is within the scope of the Commerce Clause"); Lopez , 514 U.S. at 552 (noting that Fifth Circuit held the Act invalid "in light of what it characterized as insufficient congressional findings and legislative history"), such an understanding cannot be reconciled with the much different analysis of the statute's constitutionality undertaken by the Supreme Court. See , e.g. , id . at 551 ("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 to regulate Commerce . . . among the several States . . . ." (internal quotation marks omitted)).

To read the Supreme Court's decision as if it were the Fifth Cir- cuit's, one would have to dismiss as disingenuous the Supreme Court's explicit statements that "[s]imply because Congress may con- clude that a particular activity substantially affects interstate com- merce does not necessarily make it so," id . at 557 n.2 (internal quotation marks and citation omitted); that "[w]hether particular oper- ations affect interstate commerce sufficiently to come under the con- stitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question," id .; and even that "Congress nor- mally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce," id . at 562. Fur- ther, the Court's self-described "independent evaluation of constitu- tionality under the Commerce Clause," id ., together with its purported consideration of the government's arguments regarding the relation- ship between guns in school zones and interstate commerce, id . at 563-68, would likewise have to be disregarded as mere contrivance. And, most importantly, the Supreme Court's definitive invocation of the first principles of federalism as limitations on congressional power would have to be consigned to platitude, for legislative formal- ities are at most a mere procedural limit on congressional power. Cf . Seminole Tribe v. Florida , 517 U.S. 44, 64 (1996) ("If Hans means only that federal-question suits for money damages against the States cannot be brought in federal court unless Congress clearly says so, it means nothing at all.") (quoting Pennsylvania v. Union Gas Co. , 491 U.S. 1, 36 (1989) (Scalia, J., concurring in part and dissenting in part)). In short, to read Lopez as elevating legislative formality to a position dispositive of the constitutional inquiry, even as a practical matter, one would have to ignore everything the Court said in that opinion, other than its single, passing allusion to the statute's lack of findings.

Had the Court in Lopez intended so to elevate the existence or non- existence of findings or a formal legislative record, its holding that the Gun-Free School Zones Act exceeded Congress' power under the Commerce Clause would have constituted not a substantive limitation on congressional power, but rather a mere procedural hurdle -- in essence, a remand to Congress to make formal findings or compile a formal record. Not only would a judicial mandate that Congress con- struct a proper paper trail of the sort that might be demanded of an administrative agency ill befit the dignity of the Legislature, see , e.g. , Turner Broad. Sys. v. FCC , 512 U.S. 622, 666 (1994) (opinion of Kennedy, J.) ("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."); City of Boerne , 117 S. Ct. at 2170 ("Judicial deference, in most cases, is based not on the state of the legislative record Congress compiles but on due regard for the decision of the body constitutionally appointed to decide. As a gen- eral matter, it is for Congress to determine the method by which it will reach a decision." (internal quotation marks and citation omit- ted)); cf . Maryland v. Wirtz , 392 U.S. 183, 190 n.13 (1968) ("We are not concerned with the manner in which Congress reached its factual conclusions."), but had the Supreme Court intended to impose such a procedural requirement, Lopez would have been an unusual case in which to announce it. For after the Fifth Circuit's decision, but before the Supreme Court's, Congress had already amended the Gun-Free School Zones Act to include "congressional findings regarding the effects of firearm possession in and around schools upon interstate and foreign commerce." Lopez , 514 U.S. at 563 n.4. The Supreme Court's holding that the Gun-Free School Zones Act was unconstitu- tional, accordingly, would have constituted little more than historical irrelevancy. Surely we cannot conclude that the Lopez Court intended to authorize the enforcement of the Gun-Free School Zones Act against those who, unlike the defendant in Lopez , violated the statute after it was amended in 1994 to include explicit congressional find- ings. Not only did the Court never even hint that the addition of find- ings solved, even prospectively, the problems it identified with the statute, but such an inference would also be difficult to reconcile with the Court's manifest lack of interest in the subsequently adopted find- ings. See id . at 563 n.4 (mentioning these findings only briefly in a footnote). Finally, if there were any doubt, despite the government's litigation position in this proceeding, neither Congress nor the govern- ment has so interpreted Lopez , as evidenced by the fact that, in response to that decision, Congress, at the Administration's urging, amended 18 U.S.C. § 922(q) by adding a jurisdictional element. Compare 18 U.S.C. § 922(q)(2)(A) (limiting statute's reach to prohi- bition of possession, in a school zone, of a firearm"that has moved in or that otherwise affects interstate or foreign commerce"), with 31 Weekly Comp. Pres. Doc. 809 (May 15, 1995) (presenting Attorney General Reno's "analysis of Lopez " and recommended "legislative solution" of limiting statute's reach by adding jurisdictional element, "thereby bring[ing] it within the Congress' Commerce Clause author- ity").

Lopez , then, cannot reasonably be understood to contemplate abso- lute deference to legislative findings, either in theory or in practice. As the opinion instructs, such findings can clarify the factual relation- ship that exists between conduct that a statute seeks to regulate and interstate commerce. However, because constitutionality under the substantially affects test turns ultimately not on mere empirical fact but on law, unless the relationship so clarified is sufficient to satisfy the legal requirements of that test, the statute cannot be sustained.

(b)

When viewed not with absolute deference, but rather"as part of our independent evaluation of constitutionality under the Commerce Clause," Lopez , 514 U.S. at 562 , it is apparent that the congressional findings on which appellants rely cannot establish that section 13981 is a permissible regulation under the substantially affects test.

In the first place, although the appellants cite hearings and commit- tee reports from at least three different Congresses-- raising the rea- sonable question of which Congress found what, a question we would be forced to pursue if we believed findings constituted a formal pro- cedural requirement -- many of the congressional findings on which the appellants rely describe only indirectly the relationship between gender-motivated violent crime and interstate commerce. Although the committee reports recite numerous findings that violence against women generally, and domestic violence in particular, are significant problems, see , e.g. , S. Rep. No. 103-138, at 38 (1993) (rape and mur- der statistics); id . at 41-42 (family violence); H.R. Rep. No. 103-395, at 26 (1993) (domestic violence statistics); S. Rep. No. 101-545, at 37 (1990) (same); H.R. Rep. No. 103-395, at 25 (violent crime gener- ally), and even that domestic violence and other violence against women affects the economy, see , e.g. , S. Rep. No. 103-138, at 41 (estimating "health care, criminal justice and other social costs of domestic violence" at $5 to $10 billion annually)); S. Rep. No. 101- 545, at 33 ("Partial estimates show that violent crime against women costs this country at least 3 billion . . . dollars a year."), neither of these propositions clarifies the impact of gender-motivated violence against women -- as opposed to all violence against women -- on the economy. Cf ., e.g. , 42 U.S.C. § 13981(e)(1) (excluding from statute's purview "random acts of violence unrelated to gender" and "acts that cannot be demonstrated, by a preponderance of the evidence, to be motivated by gender"); S. Rep. No. 102-197, at 69 (1991) (statement of Sen. Biden) ("Title III [section 13981] does not cover everyday domestic violence cases . . . . This is stated clearly in the committee report and it is the only fair reading of the statutory language."). The findings linking this more narrow class of violence to the economy are substantially more modest. See , e.g. , S. Rep. No. 103-138, at 54 ("Gender-based violence bars its most likely targets -- women -- from full partic[ipation] in the national economy."); id . ("Even the fear of gender-based violence affects the economy . . . ."). Not even these findings, however, describe the effects of gender-motivated vio- lence on interstate commerce , let alone do they constitute a legislative judgment that gender-motivated violence substantially affects inter- state commerce.

Ultimately, appellants cite only two congressional findings regard- ing the effects of gender-motivated violence on interstate commerce. First, they cite a House Conference Report finding, in a single conclu- sory sentence, that "crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by deterring poten- tial victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce; crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products." H.R. Conf. Rep. No. 103-711, at 385 (1994), reprinted in 1994 U.S. Code Cong. & Admin. News 1839, 1853. Second, they cite a Senate report finding that "[g]ender-based violent crimes meet the modest threshold required by the Commerce Clause. Gender-based crimes and the fear of gender-based crimes restricts movement, reduces employment opportunities, increases health expenditures, and reduces consumer spending, all of which affect interstate commerce and the national economy." S. Rep. No. 103-138, at 54 (emphases added). ¹⁶ Although these two lone findings do recite effects of gender- motivated violence on interstate commerce as a factual matter, to the extent these findings are intended also as a legal conclusion that such violence is sufficiently related to interstate commerce to satisfy the substantially affects test, under Lopez we cannot accept this conclu- sion uncritically. This is especially so where, as here, Congress' find- ings themselves reveal a profound misunderstanding of the constitutionally permissible scope of its Commerce power under Arti- cle I, Section 8. The Senate initially found not that gender-motivated violence substantially affects interstate commerce, but only that gender-based violence affects interstate commerce and the national economy sufficiently to satisfy what it described as the "modest threshold required by the Commerce Clause." And even this finding must be considered in light of its simultaneously and explicitly stated belief that "[t]he Commerce Clause is a broad grant of power allow- ing Congress to reach conduct that has even the slightest effect on interstate commerce." S. Rep. No. 138, at 54 (emphasis added); cf . Lopez , 514 U.S. at 559 ("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 com- merce." (emphasis added)). That this misapprehension of the scope of the power to regulate interstate commerce was not confined to the Senate is confirmed by section 13981's express statutory purpose "to protect the civil rights of victims of gender motivated violence and to promote public safety, health, and activities affecting interstate commerce ." 42 U.S.C. § 13981(a) (emphasis added). Not only does the explicit language of this provision misstate the scope of Congress' power under the Commerce Clause, but it also assumes a general power to regulate health and safety -- the very essence of the sort of police power the Constitution denies to the federal government and reserves to the States. Compare U.S. Const. art. I, § 8 (enumerated powers of Congress), with id . amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."), and City of Boerne , 117 S. Ct. at 2171 (noting"the States' traditional pre- rogatives and general authority to regulate for the health and welfare of their citizens").

Therefore, as a court, we cannot avoid our duty to evaluate inde- pendently the constitutionality of section 13981 under the Commerce Clause. The legislative record in this case, considered as a whole, shows that violence against women is a sobering problem and also that such violence ultimately does take a toll on the national economy. The record also supports an inference that some portion of this violence, and the toll that it exacts, is attributable to gender animus. And Con- gress' specific findings regarding the relationship between gender- motivated violence and interstate commerce, though somewhat con- clusory, cf . Lopez , 514 U.S. at 612 n.2 (Souter, J., dissenting) (noting that the findings added by Congress to the GFSZA were made "at such a conclusory level of generality as to add virtually nothing to the record"), depict the manner in which such violence affects interstate commerce -- primarily by imposing medical, legal, and other costs upon its victims; by discouraging those who fear such violence from traveling, working, or transacting business at times or in places that they deem unsafe (thereby deterring some interstate travel, employ- ment, and transactions); and, as a result, by inhibiting the productivity of its actual or potential victims and decreasing the supply and demand for interstate products.

This legislative record no doubt supports the wisdom and legiti- macy of many of the measures Congress enacted in the Violence Against Women Act, such as the expenditure of federal funds, the criminalization of violence against women with an explicit interstate nexus, and the amendment of the Federal Rules of Evidence to better accommodate the victims of such violence. And, given the sweeping view of Congress' power to regulate interstate commerce suggested by the committee reports and the express statutory-purpose provision, it is not surprising that Congress believed the relationship between gender-motivated crimes of violence and interstate commerce suffi- cient to support, under the Commerce Clause, the regulation of this noneconomic activity, even in the absence of a jurisdictional element.

However, although appellants repeatedly assert that the relationship described by these findings is direct, see , e.g. , Br. of Intervenor United States at 19, 28, 30-31; Reply Br. of Intervenor United States at 10, 12-13, it quite simply is not. Rather, it is almost precisely anal- ogous to the attenuated, though undoubtedly real, relationship asserted to exist between guns in school zones and interstate com- merce, see Lopez , 514 U.S. at 563 -64 (rejecting arguments of costs of crime, decreased travel, and decreased national productivity as insuf- ficient to bring the regulation of guns in school zones within the Com- merce power), or, for that matter, to that which undoubtedly exists between any significant activity and interstate commerce. That the relationship here is asserted not by appellants alone, but also by Con- gress, cannot be dispositive. As noted, the Supreme Court did not reject the government's arguments in Lopez because they lacked for- mality. Nor did it reject them because it did not understand them or because it questioned their factual validity. Rather, the Supreme Court held that the Commerce power could not be extended to the regula- tion of activities having only such an attenuated relationship with interstate commerce without granting Congress an unlimited police power inconsistent with a Constitution of enumerated and limited fed- eral powers. Here, as in Lopez , the power that Congress has asserted is essentially limitless; the existence of findings or documentation, standing alone, does not provide the type of meaningful limitation on congressional power required by a Constitution that withholds from Congress "a general police power of the sort retained by the States." Id . at 567.

FOOTNOTES

1. This statement of facts is drawn almost verbatim from the statement of facts set forth by the United States and adopted, for purposes of this appeal, by appellees Morrison and Crawford. Br. of Intervenor United States at 16-17; Br. of Appellees at 1 (adopting statement of facts set forth by the United States).

2. Appellant Brzonkala also contends that the district court improperly dismissed her claims against Virginia Polytechnic Institute under Title IX of the Education Amendments of 1972, 20 U.S.C.§§ 1681-1688, in which she assertedly alleged both disparate treatment and hostile envi- ronment causes of action. We do not question the district court's conclu- sion that Brzonkala failed to state a claim alleging disparate treatment, and we thus affirm that holding and the reasoning upon which it was based. With respect to the hostile environment claim, the Supreme Court of the United States has recently agreed to decide whether student on stu- dent sexual harassment is actionable at all under Title IX. See Davis v. Monroe County Bd. of Educ. , 120 F.3d 1390 (11th Cir. 1997), cert. granted , 66 U.S.L.W. 3387 (U.S. Sept. 29, 1998) (No. 97-843). Because the Court's decision in Davis will almost certainly prove informative of whether Brzonkala has sufficiently pled such a cause of action, if not determinative of that asserted cause of action as a matter of law, we vacate the district court's dismissal of the hostile environment cause of action and remand with instructions to the district court to hold this claim in abeyance pending the Supreme Court's disposition of Davis .

3. It is much less clear whether Brzonkala has properly stated a section 13981 claim against appellee Crawford, as Crawford is not alleged to have made statements like Morrison's. By concluding that Brzonkala has stated a claim against Morrison, however, we are forced to confront the question of whether section 13981 exceeds the scope of Congress' con- stitutional powers. Our resolution of that question, which we discuss below at Parts III-IV, renders unnecessary any decision as to whether Brzonkala has also stated a claim against Crawford.

4. As the Court reaffirmed in Lopez , Congress may, under the Com- merce Clause, "regulate the use of the channels of interstate commerce" and "regulate and protect the instrumentalities of interstate commerce, or

persons and things in interstate commerce, even though the threat may come only from intrastate activities," in addition to regulating activities that substantially affect interstate commerce. Lopez , 514 U.S. at 558 -59. It is both clear and undisputed by the parties that§ 13981, like the GFSZA,

is not a regulation of the use of the channels of interstate com- merce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce; nor can it be justified as a regulation by which Congress has sought to protect an instrumentality of interstate commerce or a thing in interstate commerce.

Id . at 559. Thus, § 13981 can be sustained under the Commerce Clause only if it constitutes "a regulation of an activity that substantially affects interstate commerce." Id .

5. Although appellants -- in six briefs -- confine their tepid acknowl- edgment of this distinction to a single sentence, see infra note 19 and accompanying text, it is impossible to ignore either the distinction drawn by the Court between regulations of economic and noneconomic activi- ties or the critical importance of this distinction to the Court's analysis. See , e.g. , Lopez , 514 U.S. at 559 (majority) ("[W]e have upheld a wide variety of congressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected inter- inadvertently , see infra at 203 ("The representative effectiveness of state and federal governments would also be impaired if`the Federal Govern- ment [were] to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities.'") (quoting Lopez , 514 U.S. at 577 (Kennedy, J., concurring)) (emphasis added). Only once (and then only in a quote from another case) does the dissent quote even the word "economic" from Lopez -- a word that appears repeatedly throughout the several opinions in that case .

Cases subsequent to Lopez , of course, reaffirm that congressional power under the substantially affects test is limited primarily to the regu- lation of economic or commercial activities. See , e.g. , United States v. Robertson , 514 U.S. 669, 671 (1995) (per curiam) ("The `affecting com- merce' test was developed in our jurisprudence to define the extent of Congress's power over purely intra state commercial activities that none- theless have substantial inter state effects.") (second emphasis added).

6. Notwithstanding this seemingly unequivocal holding by the Court in Lopez , we do, nevertheless, proceed to address the possibility that Con- gress' power might well extend to regulating some noneconomic activi- ties as well. See infra Part III.C. To the extent that we do consider such a possibility, that new rule would contemplate a congressional power under the Commerce Clause broader , rather than narrower , than that acknowledged by the Court in Lopez . Thus, in the end, the dissent's rhe- torical ploy of charging us with creating a "new rule" rebounds upon itself with a vengeance.

7. The Court's reaffirmation of Wickard in Lopez also distinguishes the present case from United States v. Leshuk , 65 F.3d 1105 (4th Cir. 1995), in which we upheld the federal prohibition on the manufacture of mari- juana, even as applied to manufacture for personal use. Like the produc- tion of home-grown wheat, the manufacture of marijuana for personal use is an economic activity in a general sense. Further, such manufacture is prohibited pursuant to a comprehensive statutory scheme bearing on all aspects of the illegal-drug trade, which is assuredly both commercial and interstate. Cf . id . at 1112 ("In contrast to the firearm possession pro- hibited in the Gun Act, the intrastate drug activities regulated in the Drug Act are clearly tied to interstate commerce."). Thus, like the regulation of home-grown wheat, the prohibition of home-grown marijuana is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Lopez , 514 U.S. at 561 .

8. We reject Brzonkala's contention that the link here is more direct than in Lopez because section 13981 regulates actual violence rather than the possession of guns, which could, but would not necessarily, lead to vio- lence. See Br. of Appellant Brzonkala at 38. As is apparent from their arguments, however, many of the economic effects of gender-motivated violence upon which the appellants rely arise, as in Lopez , not from actual violence, but rather from the fear of such violence. And, unlike in Lopez , in which the potential violence threatened education, a specific enterprise with clear links to the economy, see Lopez , 514 U.S. at 624 (Breyer, J., dissenting) ("[T]he immediacy of the connection between education and the national economic well-being is documented by schol- ars 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."), gender- motivated violence affects no such specific enterprise. Thus, the manner in which any given act of gender-motivated violence affects the economy will depend on the specific circumstances of its victim. It is clear that here, as in Lopez , the relationship between the regulated conduct and interstate commerce is attenuated, and that any slight difference in the number of "steps" in the relationship is both artificial and insignificant.

9. Brzonkala selectively quotes from our opinion in Hoffman to support her argument that Congress may regulate violence motivated by gender animus, despite its noneconomic character, solely because of its ultimate economic effects, see Supp. Br. of Appellant Brzonkala at 4. That case, however, does not support her position. Compare id . (stating that this court has upheld regulation of an activity that"was `closely connected with, and ha[d] a direct and profound effect on, the interstate commercial market.'") (quoting Hoffman , 126 F.3d at 586-87), with Hoffman , 126 F.3d at 587 (explaining that regulated activity"is closely connected with, and has a direct and profound effect on, the interstate commercial market in reproductive health care services " (emphasis added)). It is plain that we did not uphold the statute in Hoffman because the regulated conduct affected the national economy, but rather because it directly affected a specific interstate market and was also "closely and directly connected with an economic activity." Id .

10. Appellants attempt to distinguish the GFSZA struck down in Lopez from section 13981 on the grounds that the former overrode state laws that would otherwise regulate guns in school zones. Appellants' charac- terization of the GFSZA, however, rests primarily on the misleading attribution to the Supreme Court of an opinion voiced only by President Bush, which the Court quotes in passing at the end of a lengthy footnote. Compare Br. of Intervenor United States at 31-32 (" In the Court's view , the Gun Free School Zones Act `inappropriately overr[ode] legitimate state firearms laws with a new and unnecessary Federal law.' 115 S. Ct. at 1631 n.3 (internal quotation marks and citation omitted).") (emphasis added)), Supp. Br. of Intervenor United States at 5 (same), Reply Br. of Intervenor United States at 14 (similar), and id . at 15 (similar), with Lopez , 514 U.S. at 561 n.3 ("[ S ] ee also Statement of President George Bush on Signing the Crime Control Act of 1990, 26 Weekly Comp. of Pres. Doc. 1944, 1945 (Nov. 29, 1990) (`Most egregiously, section [922(q)] inappropriately overrides legitimate state firearms laws with a new and unnecessary Federal law. . . .').") (emphasis added)). Further- more, appellants' characterization of the GFSZA overlooks the actual character of that statute which, like section 13981, carefully preserved state laws by, inter alia , exempting from its prohibition possession of a gun licensed by a State or locality, 18 U.S.C. § 922(q)(2)(B)(ii), and pre- serving the rights of States and localities to establish gun-free school zones, id . § 922(q)(4); see also id . § 927 (expressing desire not to pre- empt state laws).

11. In fact, section 13981 appears to have been specifically intended to enhance the penalty for the conduct that it regulates. See S. Rep. No. 103-138, at 50 (1993) ("Title III [section 13981] singles out for enhance- ment bias-inspired conduct . . . .").

12. See also Chief Justice William H. Rehnquist, Remarks at the Annual Meeting of the American Law Institute (May 11, 1998) (listing the Vio- lence Against Women Act as one of "the more notable examples" of "a series of laws passed by Congress that have expanded the jurisdiction of the federal courts" and that have raised the"prospect that our system will look more and more like the French government, where even the most minor details are ordained by the national government in Paris"); see generally Chief Justice William H. Rehnquist, The 1998 Year-End Report of the Federal Judiciary (January 1999) ("The trend to federalize crimes that traditionally have been handled in state courts not only is tax- ing the Judiciary's resources and affecting its budget needs, but it also threatens to change entirely the nature of our federal system.").

13. See , e.g. , Supp. Br. of Intervenor United States at 3 (contending that because Congress failed to identify nexus between regulated conduct and interstate commerce or provide "findings of any sort," "the effect of gun possession on interstate commerce could be posited only hypothetically," and "it would be necessary to `pile inference upon inference' to sustain the statute") (quoting Lopez , 514 U.S. at 567 ); Reply Br. of Intervenor United States at 12 ("The Lopez Court found it could sustain the Gun Free School Zones Act only by `pil[ing] inference on inference,' Lopez , 115 S. Ct. at 1634, and explicitly noted the absence of any legislative findings that would have made the inferential process unnecessary. Id . at 1631."); Br. of Intervenor United States at 19 (similar); cf . Br. of Appel- lant Brzonkala at 38 (similar).

14. See , e.g. , Reply Br. of Intervenor United States at 12 n.8 ("The point for the Lopez majority . . . was that its inferential task was not lightened by the presence of legislative findings such as those that are present here. Defendant's insistence that the outcome in Lopez would have been iden- tical regardless of the legislative record before the Court is flatly at odds with the Court's declaration and its reasoning."); cf . id . at 12 (noting "critical" nature of findings); id . at 11 ("Contrary to defendants' conten- tion here, legislative findings are of key significance.").

15. See also infra at 195 ("Where Congress has supported a statute with an explicitly articulated rationale asserting its constitutionality, [ ] invali- dation . . . [is] a direct repudiation of Congress's full authority."); id . at 214 ("No one doubts the validity of any of these principles [of federalism and enumerated powers]. The critical question, however, is who decides how they are to be upheld. The Constitution itself provides a clear and specific answer to that question. It allocates the fundamental power of government -- the power of legislation -- to Congress."); id . at 195 ("The statute itself articulates the existence of a congressional judgment of constitutionality, while findings articulate the content of that judg- ment. We defer to the former . . . and we grant an additional measure of deference to the latter. . . ."); id . at 183-184 ("Given Congress's clear finding that gender-based violence has a substantial effect on interstate commerce, the compelling evidence in the legislative record supporting that finding, and the fact that the challenged statute in no way interferes with state action on matters of traditional state concern, it seems to me that a court can only uphold Subtitle C."); id . at 187 (criticizing majority for "flyspeck[ing] congressional judgments"); id . at 189 (criticizing majority for claiming that gender-based violence lacks a meaningful con- nection to economic activities, given that "Congress expressly found that gender-based violence does affect specific economic activities. . . ."); id . at 195 ("[N]othing in Lopez suggests that when Congress has considered a matter and made a rational finding of constitutionality -- let alone an explicit finding based on a massive congressional record, as in this case -- a court should not defer to that finding.").

16. Although appellants cite this latter finding, they evince an under- standable -- though barely excusable -- reluctance to quote it in its entirety. Compare Br. of Intervenor United States at 8 (" See also S. Rep. No. 103-138 at 54 (`[g]ender-based crimes and the fear of gender-based crimes restrict[ ] movement, reduce[ ] employment opportunities, increase[ ] health expenditures, and reduce[ ] consumer spending')."), and id . at 30 (same), with Supp. Br. of Intervenor United States at 1-2 ("`[G]ender-based crimes and the fear of gender-based crimes restrict[ ] movement, reduce[ ] employment opportunities, increase[ ] health expen- ditures, and reduce[ ] consumer spending, all of which affect interstate commerce and the national economy.' S. Rep. No. 103-138, at 54 (1993).").

FindLaw Career Center

Search for Law Jobs:

Ads by FindLaw