[This version of the case includes the footnotes, unlike one pulled
down from the project hermes machine at Cornell U., which for some
reason doesn't seem to have the footnotes in opinions available
through it.]
[Cite as U.S. v. Lopez, 115 S.Ct. 1624 (1995)]
NOTE: Where it is feasible, a syllabus (headnote) will be released,
as is being done in connection with this case, at the time the
opinion is issued. The syllabus constitutes no part of the opinion
of the Court but has been prepared by the Reporter of Decisions for
the convenience of the reader. See United States v. Detroit Lumber
Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. LOPEZ
certiorari to the united states court of appeals for
the fifth circuit
No. 93-1260.
Argued November 8, 1994-Decided April 26, 1995
After respondent, then a 12th-grade student, carried a
concealed handgun into his high school, he was charged with
violating the Gun-Free School Zones Act of 1990, which forbids
``any individual knowingly to possess a firearm at a place that
[he] knows . . . is a school zone,'' 18 U. S. C. section
922(q)(1)(A). The District Court denied his motion to dismiss the
indictment, concluding that section 922(q) is a constitutional
exercise of Congress' power to regulate activities in and affecting
commerce. In reversing, the Court of Appeals held that, in light
of what it characterized as insufficient congressional findings and
legislative history, section 922(q) is invalid as beyond Congress'
power under the Commerce Clause.
Held: The Act exceeds Congress' Commerce Clause authority.
First, although this Court has upheld a wide variety of
congressional Acts regulating intrastate economic activity that
substantially affected interstate commerce, the possession of a gun
in a local school zone is in no sense an economic activity that
might, through repetition elsewhere, have such a substantial effect
on interstate commerce. Section 922(q) is a criminal statute that
by its terms has nothing to do with ``commerce'' or any sort of
economic enterprise, however broadly those terms are defined. Nor
is it an essential part of a larger regulation of economic
activity, in which the regulatory scheme could be undercut unless
the intrastate activity were regulated. It cannot, therefore, be
sustained under the Court's cases upholding regulations of
activities that arise out of or are connected with a commercial
transaction, which viewed in the aggregate, substantially affects
interstate commerce. Second, 922(q) contains no jurisdictional
element which would ensure, through case-by-case inquiry, that the
firearms possession in question has the requisite nexus with
interstate commerce. Respondent was a local student at a local
school; there is no indication that he had recently moved in
interstate commerce, and there is no requirement that his
possession of the firearm have any concrete tie to interstate
commerce. To uphold the Government's contention that 922(q) is
justified because firearms possession in a local school zone does
indeed substantially affect interstate commerce would require this
Court to pile inference upon inference in a manner that would bid
fair to convert congressional Commerce Clause authority to a
general police power of the sort held only by the States.
Pp. 2-19.
2 F. 3d 1342, affirmed.
Rehnquist, C. J., delivered the opinion of the Court, in which
O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J.,
filed a concurring opinion, in which O'Connor, J., joined. Thomas,
J., filed a concurring opinion. Stevens, J., and Souter, J., filed
dissenting opinions. Breyer, J., filed a dissenting opinion, in
which Stevens, Souter, and Ginsburg, JJ., joined.
NOTICE: This opinion is subject to formal revision before
publication in the preliminary print of the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Washington, D.C. 20543, of any
typographical or other formal errors, in order that corrections may
be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
--------
No. 93-1260
--------
UNITED STATES, PETITIONER v. ALFONSO LOPEZ, Jr.
on writ of certiorari to the united states court
of appeals for the fifth circuit
[April 26, 1995]
Chief Justice Rehnquist delivered the opinion of the
Court.
In the Gun-Free School Zones Act of 1990, Congress made it a
federal offense "for any individual knowingly to possess a firearm
at a place that the individual knows, or has reasonable cause to
believe, is a school zone." 18 U. S. C. section 922(q)(1)(A)
(1988 ed., Supp. V). The Act neither regulates a commercial
activity nor contains a requirement that the possession be
connected in any way to interstate commerce. We hold that the
Act exceeds the authority of Congress "[t]o regulate Commerce . .
. among the several States . . . ." U. S. Const., Art. I, 8, cl.
3.
On March 10, 1992, respondent, who was then a 12th-grade
student, arrived at Edison High School in San Antonio, Texas,
carrying a concealed .38 caliber handgun and five bullets. Acting
upon an anonymous tip, school authorities confronted respondent,
who admitted that he was carrying the weapon. He was arrested and
charged under Texas law with firearm possession on school
premises. See Tex. Penal Code Ann. section 46.03(a)(1) (Supp.
1994). The next day, the state charges were dismissed after
federal agents charged respondent by complaint with violating the
Gun-Free School Zones Act of 1990. 18 U. S. C. section
922(q)(1)(A) (1988 ed., Supp. V). [footnote 1]
A federal grand jury indicted respondent on one count of
knowing possession of a firearm at a school zone, in violation of
section 922(q). Respondent moved to dismiss his federal
indictment on the ground that section 922(q) "is unconstitutional
as it is beyond the power of Congress to legislate control over
our public schools." The District Court denied the motion,
concluding that section 922(q) "is a constitutional exercise of
Congress' well-defined power to regulate activities in and
affecting commerce, and the `business' of elementary, middle and
high schools . . . affects interstate commerce." App. to Pet. for
Cert. 55a. Respondent waived his right to a jury trial. The
District Court conducted a bench trial, found him guilty of
violating section 922(q), and sentenced him to six months'
imprisonment and two years' supervised release.
On appeal, respondent challenged his conviction based on his
claim that section 922(q) exceeded Congress' power to legislate
under the Commerce Clause. The Court of Appeals for the Fifth
Circuit agreed and reversed respondent's conviction. It held
that, in light of what it characterized as insufficient
congressional findings and legislative history, "section 922(q),
in the full reach of its terms, is invalid as beyond the power of
Congress under the Commerce Clause." 2 F. 3d 1342, 1367-1368
(1993). Because of the importance of the issue, we granted
certiorari, 511 U. S. ___ (1994), and we now affirm.
We start with first principles. The Constitution creates a
Federal Government of enumerated powers. See U. S. Const., Art.
I, section 8. As James Madison wrote, "[t]he powers delegated by
the proposed Constitution to the federal government are few and
defined. Those which are to remain in the State governments are
numerous and indefinite." The Federalist No. 45, pp. 292-293 (C.
Rossiter ed. 1961). This constitutionally mandated division of
authority "was adopted by the Framers to ensure protection of our
fundamental liberties." Gregory v. Ashcroft, 501 U. S. 452, 458
(1991) (internal quotation marks omitted). "Just as the
separation and independence of the coordinate branches of the
Federal Government serves to prevent the accumulation of excessive
power in any one branch, a healthy balance of power between the
States and the Federal Government will reduce the risk of tyranny
and abuse from either front." Ibid.
The Constitution delegates to Congress the power "[t]o regulate
Commerce with foreign Nations, and among the several States, and
with the Indian Tribes." U. S. Const., Art. I, section 8, cl. 3.
The Court, through Chief Justice Marshall, first defined the
nature of Congress' commerce power in Gibbons v. Ogden, 9 Wheat.
1, 189-190 (1824):
"Commerce, undoubtedly, is traffic, but it is something more:
it is intercourse. It describes the commercial intercourse
between nations, and parts of nations, in all its branches,
and is regulated by prescribing rules for carrying on that
intercourse."
The commerce power "is the power to regulate; that is, to
prescribe the rule by which commerce is to be governed. This
power, like all others vested in Congress, is complete in itself,
may be exercised to its utmost extent, and acknowledges no
limitations, other than are prescribed in the constitution." Id.,
at 196. The Gibbons Court, however, acknowledged that limita-
tions on the commerce power are inherent in the very language of
the Commerce Clause.
"It is not intended to say that these words comprehend that
commerce, which is completely internal, which is carried on
between man and man in a State, or between different parts of
the same State, and which does not extend to or affect other
States. Such a power would be inconvenient, and is certainly
unnecessary.
"Comprehensive as the word `among' is, it may very properly
be restricted to that commerce which concerns more States
than one. . . . The enumeration presupposes something not
enumerated; and that something, if we regard the language or
the subject of the sentence, must be the exclusively
internal commerce of a State." Id., at 194-195.
For nearly a century thereafter, the Court's Commerce Clause
decisions dealt but rarely with the extent of Congress' power, and
almost entirely with the Commerce Clause as a limit on state
legislation that discriminated against interstate commerce. See,
e.g., Veazie v. Moor, 14 How. 568, 573-575 (1853) (upholding a
state-created steamboat monopoly because it involved regulation of
wholly internal commerce); Kidd v. Pearson, 128 U. S. 1, 17, 20-22
(1888) (upholding a state prohibition on the manufacture of
intoxicating liquor because the commerce power "does not
comprehend the purely domestic commerce of a State which is
carried on between man and man within a State or between different
parts of the same State"); see also L. Tribe, American Constitu-
tional Law 306 (2d ed. 1988). Under this line of precedent, the
Court held that certain categories of activity such as
"production," "manufacturing," and "mining" were within the
province of state governments, and thus were beyond the power of
Congress under the Commerce Clause. See Wickard v. Filburn, 317
U. S. 111, 121 (1942) (describing development of Commerce Clause
jurisprudence).
In 1887, Congress enacted the Interstate Commerce Act, 24 Stat.
379, and in 1890, Congress enacted the Sherman Antitrust Act, 26
Stat. 209, as amended, 15 U. S. C. section 1 et seq. These laws
ushered in a new era of federal regulation under the commerce
power. When cases involving these laws first reached this Court,
we imported from our negative Commerce Clause cases the approach
that Congress could not regulate activities such as "production,"
"manufacturing," and "mining." See, e.g., United States v. E. C.
Knight Co., 156 U. S. 1, 12 (1895) ("Commerce succeeds to
manufacture, and is not part of it"); Carter v. Carter Coal Co.,
298 U. S. 238, 304 (1936) ("Mining brings the subject matter of
commerce into existence. Commerce disposes of it").
Simultaneously, however, the Court held that, where the interstate
and intrastate aspects of commerce were so mingled together that
full regulation of interstate commerce required incidental
regulation of intrastate commerce, the Commerce Clause authorized
such regulation. See, e.g., Houston, E. & W. T. R. Co. v. United
States, 234 U. S. 342 (1914) (Shreveport Rate Cases).
In A. L. A. Schecter Poultry Corp. v. United States, 295 U. S.
495, 550 (1935), the Court struck down regulations that fixed the
hours and wages of individuals employed by an intrastate business
because the activity being regulated related to interstate
commerce only indirectly. In doing so, the Court characterized
the distinction between direct and indirect effects of intra-
state transactions upon interstate commerce as "a fundamental one,
essential to the maintenance of our constitutional system." Id.,
at 548. Activities that affected interstate commerce directly
were within Congress' power; activities that affected interstate
commerce indirectly were beyond Congress' reach. Id., at 546.
The justification for this formal distinction was rooted in the
fear that otherwise "there would be virtually no limit to the
federal power and for all practical purposes we should have a
completely centralized government." Id., at 548.
Two years later, in the watershed case of NLRB v. Jones &
Laughlin Steel Corp., 301 U. S. 1 (1937), the Court upheld the
National Labor Relations Act against a Commerce Clause challenge,
and in the process, departed from the distinction between "direct"
and "indirect" effects on interstate commerce. Id., at 36-38
("The question [of the scope of Congress' power] is necessarily
one of degree"). The Court held that intrastate activities that
"have such a close and substantial relation to interstate commerce
that their control is essential or appropriate to protect that
commerce from burdens and obstructions" are within Congress' power
to regulate. Id., at 37.
In United States v. Darby, 312 U. S. 100 (1941), the Court
upheld the Fair Labor Standards Act, stating:
"The power of Congress over interstate commerce is not
confined to the regulation of commerce among the states. It
extends to those activities intrastate which so affect
interstate commerce or the exercise of the power of Congress
over it as to make regulation of them appropriate means to the
attainment of a legitimate end, the exercise of the granted
power of Congress to regulate interstate commerce." Id., at
118.
See also United States v. Wrightwood Dairy Co., 315 U. S. 110, 119
(1942) (the commerce power"extends to those intrastate activities
which in a substantial way interfere with or obstruct the exercise
of the granted power").
In Wickard v. Filburn, the Court upheld the application of
amendments to the Agricultural Adjustment Act of 1938 to the
production and consumption of home-grown wheat. 317 U. S., at
128-129. The Wickard Court explicitly rejected earlier
distinctions between direct and indirect effects on interstate
commerce, stating:
"[E]ven if appellee's activity be local and though it may not
be regarded as commerce, it may still, whatever its nature,
be reached by Congress if it exerts a substantial economic
effect on interstate commerce, and this irrespective of
whether such effect is what might at some earlier time have
been defined as `direct' or `indirect.'" Id., at 125.
The Wickard Court emphasized that although Filburn's own
contribution to the demand for wheat may have been trivial by
itself, that was not "enough to remove him from the scope of
federal regulation where, as here, his contribution, taken together
with that of many others similarly situated, is far from trivial."
Id., at 127-128.
Jones & Laughlin Steel, Darby, and Wickard ushered in an era of
Commerce Clause jurisprudence that greatly expanded the previously
defined authority of Congress under that Clause. In part, this
was a recognition of the great changes that had occurred in the
way business was carried on in this country. Enterprises that had
once been local or at most regional in nature had become national
in scope. But the doctrinal change also reflected a view that
earlier Commerce Clause cases artificially had constrained the
authority of Congress to regulate interstate commerce.
But even these modern-era precedents which have expanded
congressional power under the Commerce Clause confirm that this
power is subject to outer limits. In Jones & Laughlin Steel, the
Court warned that the scope of the interstate commerce power "must
be considered in the light of our dual system of government and
may not be extended so as to embrace effects upon interstate
commerce so indirect and remote that to embrace them, in view of
our complex society, would effectually obliterate the distinction
between what is national and what is local and create a completely
centralized government." 301 U. S., at 37; see also Darby, supra,
at 119-120 (Congress may regulate intrastate activity that has a
"substantial effect" on interstate commerce); Wickard, supra, at
125 (Congress may regulate activity that "exerts a substantial
economic effect on interstate commerce"). Since that time, the
Court has heeded that warning and undertaken to decide whether a
rational basis existed for concluding that a regulated activity
sufficiently affected interstate commerce. See, e.g., Hodel v.
Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264,
276-280 (1981); Perez v. United States, 402 U. S. 146, 155-156
(1971); Katzenbach v. McClung, 379 U. S. 294, 299-301 (1964);
Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241,
252-253 (1964). [footnote 2]
Similarly, in Maryland v. Wirtz, 392 U. S. 183 (1968), the
Court reaffirmed that "the power to regulate commerce, though broad
indeed, has limits" that "[t]he Court has ample power" to enforce.
Id., at 196, overruled on other grounds, National League of Cities
v. Usery, 426 U. S. 833 (1976), overruled by Garcia v. San Antonio
Metropolitan Transit Authority, 469 U. S. 528 (1985). In response
to the dissent's warnings that the Court was powerless to enforce
the limitations on Congress' commerce powers because "[a]ll
activities affecting commerce, even in the minutest degree,
[Wickard], may be regulated and controlled by Congress," 392 U.
S., at 204 (Douglas, J., dissenting), the Wirtz Court replied
that the dissent had misread precedent as "[n]either here nor in
Wickard has the Court declared that Congress may use a relatively
trivial impact on commerce as an excuse for broad general
regulation of state or private activities," id., at 197, n. 27.
Rather, "[t]he Court has said only that where a general regulatory
statute bears a substantial relation to commerce, the de minimis
character of individual instances arising under that statute is of
no consequence." Ibid. (first emphasis added).
Consistent with this structure, we have identified three broad
categories of activity that Congress may regulate under its
commerce power. Perez v. United States, supra, at 150; see also
Hodel v. Virginia Surface Mining & Reclamation Assn., supra, at
276-277. First, Congress may regulate the use of the channels of
interstate commerce. See, e.g., Darby, 312 U. S., at 114; Heart
of Atlanta Motel, supra, at 256 ("`[T]he authority of Congress to
keep the channels of interstate commerce free from immoral and
injurious uses has been frequently sustained, and is no longer open
to question.'" (quoting Caminetti v. United States, 242 U. S.
470, 491 (1917)). Second, Congress is empowered to regulate and
protect the instrumentalities of interstate commerce, or persons
or things in interstate commerce, even though the threat may come
only from intrastate activities. See, e.g., Shreveport Rate
Cases, 234 U. S. 342 (1914); Southern R. Co. v. United States, 222
U. S. 20 (1911) (upholding amendments to Safety Appliance Act as
applied to vehicles used in intrastate commerce); Perez, supra, at
150 ("[F]or example, the destruction of an aircraft (18 U. S. C.
section 32), or . . . thefts from interstate shipments (18 U. S.
C. section 659)"). Finally, Congress' commerce authority includes
the power to regulate those activities having a substantial
relation to interstate commerce, Jones & Laughlin Steel, 301 U.
S., at 37, i.e., those activities that substantially affect
interstate commerce. Wirtz, supra, at 196, n. 27.
Within this final category, admittedly, our case law has not
been clear whether an activity must "affect" or "substantially
affect" interstate commerce in order to be within Congress' power
to regulate it under the Commerce Clause. Compare Preseault v.
ICC, 494 U. S. 1, 17 (1990), with Wirtz, supra, at 196, n. 27 (the
Court has never declared that "Congress may use a relatively
trivial impact on commerce as an excuse for broad general
regulation of state or private activities"). We conclude,
consistent with the great weight of our case law, that the proper
test requires an analysis of whether the regulated activity
"substantially affects" interstate commerce.
We now turn to consider the power of Congress, in the
light of this framework, to enact section 922(q). The first two
categories of authority may be quickly disposed of: section 922(q)
is not a regulation of the use of the channels of interstate
commerce, nor is it an attempt to prohibit the interstate
transportation of a commodity through the channels of commerce; nor
can section 922(q) be justified as a regulation by which Congress
has sought to protect an instrumentality of interstate commerce or
a thing in interstate commerce. Thus, if section 922(q) is to be
sustained, it must be under the third category as a regulation of
an activity that substantially affects interstate commerce.
First, we have upheld a wide variety of congressional Acts
regulating intrastate economic activity where we have concluded
that the activity substantially affected interstate commerce.
Examples include the regulation of intrastate coal mining; Hodel,
supra, intrastate extortionate credit transactions, Perez, supra,
restaurants utilizing substantial interstate supplies, McClung,
supra, inns and hotels catering to interstate guests, Heart of
Atlanta Motel, supra, and production and consumption of home-grown
wheat, Wickard v. Filburn, 317 U. S. 111 (1942). These examples
are by no means exhaustive, but the pattern is clear. Where
economic activity substantially affects interstate commerce,
legislation regulating that activity will be sustained.
Even Wickard, which is perhaps the most far reaching example of
Commerce Clause authority over intrastate activity, involved
economic activity in a way that the possession of a gun in a school
zone does not. Roscoe Filburn operated a small farm in Ohio, on
which, in the year involved, he raised 23 acres of wheat. It was
his practice to sow winter wheat in the fall, and after harvesting
it in July to sell a portion of the crop, to feed part of it to
poultry and livestock on the farm, to use some in making flour for
home consumption, and to keep the remainder for seeding future
crops. The Secretary of Agriculture assessed a penalty against him
under the Agricultural Adjustment Act of 1938 because he har-
vested about 12 acres more wheat than his allotment under the Act
permitted. The Act was designed to regulate the volume of wheat
moving in interstate and foreign commerce in order to avoid
surpluses and shortages, and concomitant fluctuation in wheat
prices, which had previously obtained. The Court said, in an
opinion sustaining the application of the Act to Filburn's
activity:
"One of the primary purposes of the Act in question was to
increase the market price of wheat and to that end to limit
the volume thereof that could affect the market. It can
hardly be denied that a factor of such volume and variability
as home- consumed wheat would have a substantial influence on
price and market conditions. This may arise because being in
marketable condition such wheat overhangs the market and, if
induced by rising prices, tends to flow into the market and
check price increases. But if we assume that it is never mar-
keted, it supplies a need of the man who grew it which would
otherwise be reflected by purchases in the open market.
Home-grown wheat in this sense competes with wheat in
commerce." 317 U. S., at 128.
Section 922(q) is a criminal statute that by its terms has
nothing to do with "commerce" or any sort of economic enterprise,
however broadly one might define those terms. [footnote 3] Section
922(q) is not an essential part of a larger regulation of economic
activity, in which the regulatory scheme could be undercut unless
the intra-state activity were regulated. It cannot, therefore, be
sustained under our cases upholding regulations of activities that
arise out of or are connected with a commercial transaction, which
viewed in the aggregate, substantially affects interstate commerce.
Second, section 922(q) contains no jurisdictional element which
would ensure, through case-by-case inquiry, that the firearm
possession in question affects interstate commerce. For example,
in United States v. Bass, 404 U. S. 336 (1971), the Court
interpreted former 18 U. S. C. section 1202(a), which made it a
crime for a felon to "receiv[e], posses[s], or transpor[t] in
commerce or affecting commerce . . . any firearm." 404 U. S., at
337. The Court interpreted the possession component of section
1202(a) to require an additional nexus to interstate commerce both
because the statute was ambiguous and because "unless Congress
conveys its purpose clearly, it will not be deemed to have
significantly changed the federal-state balance." Id., at 349.
The Bass Court set aside the conviction because although the
Government had demonstrated that Bass had possessed a firearm, it
had failed "to show the requisite nexus with interstate commerce."
Id., at 347. The Court thus interpreted the statute to reserve the
constitutional question whether Congress could regulate, without
more, the "mere possession" of firearms. See id., at 339, n. 4;
see also United States v. Five Gambling Devices, 346 U. S. 441, 448
(1953) (plurality opinion) ("The principle is old and deeply
imbedded in our jurisprudence that this Court will construe a
statute in a manner that requires decision of serious
constitutional questions only if the statutory language leaves no
reasonable alternative"). Unlike the statute in Bass, section
922(q) has no express jurisdictional element which might limit its
reach to a discrete set of firearm possessions that additionally
have an explicit connection with or effect on interstate commerce.
Although as part of our independent evaluation of
constitutionality under the Commerce Clause we of course consider
legislative findings, and indeed even congressional committee
findings, regarding effect on interstate commerce, see, e.g.,
Preseault v. ICC, 494 U. S. 1, 17 (1990), the Government concedes
that "[n]either the statute nor its legislative history contain[s]
express congressional findings regarding the effects upon
interstate commerce of gun possession in a school zone." Brief for
United States 5-6. We agree with the Government that Congress
normally is not required to make formal findings as to the
substantial burdens that an activity has on interstate commerce.
See McClung, 379 U. S., at 304; see also Perez, 402 U. S., at 156
("Congress need [not] make particularized findings in order to
legislate"). But to the extent that congressional findings would
enable us to evaluate the legislative judgment that the activity in
question substantially affected interstate commerce, even though no
such substantial effect was visible to the naked eye, they are
lacking here. [footnote 4]
The Government argues that Congress has accumulated
institutional expertise regarding the regulation of firearms
through previous enactments. Cf. Fullilove v. Klutznick, 448 U. S.
448, 503 (1980) (Powell, J., concurring). We agree, however, with
the Fifth Circuit that importation of previous findings to justify
section 922(q) is especially inappropriate here because the "prior
federal enactments or Congressional findings [do not] speak to the
subject matter of section 922(q) or its relationship to interstate
commerce. Indeed, section 922(q) plows thoroughly new ground and
represents a sharp break with the long-standing pattern of federal
firearms legislation." 2 F. 3d, at 1366.
The Government's essential contention, in fine, is that we may
determine here that section 922(q) is valid because possession of
a firearm in a local school zone does indeed substantially affect
interstate commerce. Brief for United States 17. The Government
argues that possession of a firearm in a school zone may result in
violent crime and that violent crime can be expected to affect the
functioning of the national economy in two ways. First, the costs
of violent crime are substantial, and, through the mechanism of
insurance, those costs are spread throughout the population. See
United States v. Evans, 928 F. 2d 858, 862 (CA9 1991). Second,
violent crime reduces the willingness of individuals to travel to
areas within the country that are perceived to be unsafe. Cf.
Heart of Atlanta Motel, 379 U. S., at 253. The Government also
argues that the presence of guns in schools poses a substantial
threat to the educational process by threatening the learning
environment. A handicapped educational process, in turn, will
result in a less productive citizenry. That, in turn, would have
an adverse effect on the Nation's economic well-being. As a
result, the Government argues that Congress could rationally have
concluded that section 922(q) substantially affects interstate
commerce.
We pause to consider the implications of the Government's
arguments. The Government admits, under its "costs of crime"
reasoning, that Congress could regulate not only all violent crime,
but all activities that might lead to violent crime, regardless of
how tenuously they relate to interstate commerce. See Tr. of Oral
Arg. 8-9. Similarly, under the Government's "national
productivity" reasoning, Congress could regulate any activity that
it found was related to the economic productivity of individual
citizens: family law (including marriage, divorce, and child
custody), for example. Under the theories that the Government
presents in support of section 922(q), it is difficult to perceive
any limitation on federal power, even in areas such as criminal law
enforcement or education where States historically have been
sovereign. Thus, if we were to accept the Government's arguments,
we are hard-pressed to posit any activity by an individual that
Congress is without power to regulate.
Although Justice Breyer argues that acceptance of the
Government's rationales would not authorize a general federal
police power, he is unable to identify any activity that the States
may regulate but Congress may not. Justice Breyer posits that
there might be some limitations on Congress' commerce power such as
family law or certain aspects of education. Post, at 10-11. These
suggested limitations, when viewed in light of the dissent's
expansive analysis, are devoid of substance.
Justice Breyer focuses, for the most part, on the threat that
firearm possession in and near schools poses to the educational
process and the potential economic consequences flowing from that
threat. Post, at 5-9. Specifically, the dissent reasons that (1)
gun-related violence is a serious problem; (2) that problem, in
turn, has an adverse effect on classroom learning; and (3) that
adverse effect on classroom learning, in turn, represents a
substantial threat to trade and commerce. Post, at 9. This
analysis would be equally applicable, if not more so, to subjects
such as family law and direct regulation of education.
For instance, if Congress can, pursuant to its Commerce Clause
power, regulate activities that adversely affect the learning
environment, then, a fortiori, it also can regulate the educational
process directly. Congress could determine that a school's
curriculum has a "significant" effect on the extent of classroom
learning. As a result, Congress could mandate a federal curricu-
lum for local elementary and secondary schools because what is
taught in local schools has a significant "effect on classroom
learning," cf. post, at 9, and that, in turn, has a substantial
effect on interstate commerce.
Justice Breyer rejects our reading of precedent and argues that
"Congress . . . could rationally conclude that schools fall on the
commercial side of the line." Post, at 16. Again, Justice
Breyer's rationale lacks any real limits because, depending on the
level of generality, any activity can be looked upon as commercial.
Under the dissent's rationale, Congress could just as easily look
at child rearing as "fall[ing] on the commercial side of the line"
because it provides a "valuable service-namely, to equip [children]
with the skills they need to survive in life and, more
specifically, in the workplace." Ibid. We do not doubt that
Congress has authority under the Commerce Clause to regulate
numerous commercial activities that substantially affect interstate
commerce and also affect the educational process. That authority,
though broad, does not include the authority to regulate each and
every aspect of local schools.
Admittedly, a determination whether an intrastate activity is
commercial or noncommercial may in some cases result in legal
uncertainty. But, so long as Congress' authority is limited to
those powers enumerated in the Constitution, and so long as those
enumerated powers are interpreted as having judicially enforceable
outer limits, congressional legislation under the Commerce Clause
always will engender "legal uncertainty." Post, at 17. As Chief
Justice Marshall stated in McCulloch v. Maryland, 4 Wheat. 316
(1819):
"The [federal] government is acknowledged by all to be one of
enumerated powers. The principle, that it can exercise only
the powers granted to it . . . is now universally admitted.
But the question respecting the extent of the powers actually
granted, is perpetually arising, and will probably continue to
arise, as long as our system shall exist." Id., at 405.
See also Gibbons v. Ogden, 9 Wheat., at 195 ("The enumeration
presupposes something not enumerated"). The Constitution mandates
this uncertainty by withholding from Congress a plenary police
power that would authorize enactment of every type of legislation.
See U. S. Const., Art. I, section 8. Congress has operated within
this framework of legal uncertainty ever since this Court
determined that it was the judiciary's duty "to say what the law
is." Marbury v. Madison, 1 Cranch. 137, 177 (1803) (Marshall, C.
J.). Any possible benefit from eliminating this "legal
uncertainty" would be at the expense of the Constitution's system
of enumerated powers.
In Jones & Laughlin Steel, 301 U. S., at 37, we held that the
question of congressional power under the Commerce Clause "is
necessarily one of degree." To the same effect is the concurring
opinion of Justice Cardozo in Schecter Poultry:
"There is a view of causation that would obliterate the
distinction of what is national and what is local in the
activities of commerce. Motion at the outer rim is
communicated perceptibly, though minutely, to recording
instruments at the center. A society such as ours `is an
elastic medium which transmits all tremors throughout its
territory; the only question is of their size.'" 295 U. S.,
at 554 (quoting United States v. A.L.A. Schecter Poultry Corp,
76 F. 2d 617, 624 (CA2 1935) (L. Hand, J., concurring)).
These are not precise formulations, and in the nature of things
they cannot be. But we think they point the way to a correct
decision of this case. The possession of a gun in a local school
zone is in no sense an economic activity that might, through
repetition elsewhere, substantially affect any sort of interstate
commerce. Respondent was a local student at a local school; there
is no indication that he had recently moved in interstate commerce,
and there is no requirement that his possession of the firearm have
any concrete tie to interstate commerce.
To uphold the Government's contentions here, we would have to
pile inference upon inference in a manner that would bid fair to
convert congressional authority under the Commerce Clause to a
general police power of the sort retained by the States.
Admittedly, some of our prior cases have taken long steps down that
road, giving great deference to congressional action. See supra,
at 8. The broad language in these opinions has suggested the
possibility of additional expansion, but we decline here to proceed
any further. To do so would require us to conclude that the
Constitution's enumeration of powers does not presuppose something
not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there
never will be a distinction between what is truly national and what
is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we
are unwilling to do.
For the foregoing reasons the judgment of the Court of Appeals
is
Affirmed.
FOOTNOTES
1. The term "school zone" is defined as "in, or on the grounds of,
a public, parochial or private school" or "within a distance of
1,000 feet from the grounds of a public, parochial or private
school." section 921 (a)(25).
2. See also Hodel, 452 U.S., at 311 ("[S]imply because Congress may
conclude that a particular activity substantially affects
interstate commerce does not necessarily make it so") {Rehnquist,
J., concurring in judgment); Heart of Atlanta Motel, 379 U.S., at
273 ("[W]hether particular operations affect interstate commerce
sufficiently to come under the constitutional power of Congress to
regulate them is ultimately a judicial rather than a legislative
question, and can be settled only by this Court") (Black, J.,
concurring).
3. Under our federal system, the "'States possess primary authority
for defining and enforcing the criminal law.'" Brecht v.
Abrahamson, 507 U.S. ___, ___, 113 S.Ct. 1710, 1720, 123 L.Ed.2d.
353 (1993) (quoting Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct.
1558, 1572, 71 L.Ed.2d. 783 (1982); see also Screws v. United
States, 325 U.S. 91, 109, 65 S.Ct. 1031, 1039, 89 L.Ed.2d. 1495
(1945) (plurality opinion) ("Our national government is one of
designated powers alone. Under our federal system the
administration of criminal justice rests with the States except as
Congress, acting within the scope of those delegated powers, has
created offenses against the United States"). When Congress
criminalizes conduct already denounced as criminal by the States,
it effects a "'change in the sensitive relation between federal and
state criminal jurisdiction.'" United States v. Emmons, 410 U.S.
396, 411-412, 93 S.Ct. 1007, 1015-1016, 35 L.Ed.2d. 379 (1973)
(quoting United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515,
523, 30 L.Ed.2d. 488 (1971)). The Government acknowledges that
section 922(q) "displace[s] state policy choices in . . . that its
prohibitions apply even in States that have chosen not to outlaw
the conduct in question." Brief for United States 29, n. 18; see
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. The policies reflected in these provisions could
legitimately be adopted by the States, but they should not be
imposed upon the States by Congress").
4. We note that on September 14, 1994, President Clinton signed
into law the Violent Crime Control and Law Enforcement Act of 1994,
Pub.L. 103-322, 108 Stat. 1796. Section 320904 of that Act, id.,
at 2125, amends section 922(q) to include congressional findings
regarding the effects of firearm possession in and around schools
upon interstate and foreign commerce. The Government does not rely
upon these subsequent findings as a substitute for the absence of
findings in the first instance. Tr. of Oral Arg. 25 ("[W]e're not
relying on them in the strict sense of the word, but we think at a
very minimum they indicate that reasons can be identified for why
Congress wanted to regulate this particular activity").
Justice Kennedy, with whom Justice O'Connor joins, concurring.
The history of the judicial struggle to interpret the Commerce
Clause during the transition from the economic system the Founders
knew to the single, national market still emergent in our own era
counsels great restraint before the Court determines that the
Clause is insufficient to support an exercise of the national
power. That history gives me some pause about today's decision,
but I join the Court's opinion with these observations on what I
conceive to be its necessary though limited holding.
Chief Justice Marshall announced that the national authority
reaches "that commerce which concerns more States than one" and
that the commerce power "is complete in itself, may be exercised to
its utmost extent, and acknowledges no limitations, other than are
prescribed in the constitution." Gibbons v. Ogden, 9 Wheat. 1,
194, 196 (1824). His statements can be understood now as an early
and authoritative recognition that the Commerce Clause grants
Congress extensive power and ample discretion to determine its
appropriate exercise. The progression of our Commerce Clause cases
from Gibbons to the present was not marked, however, by a coherent
or consistent course of interpretation; for neither the course of
technological advance nor the foundational principles for the
jurisprudence itself were self-evident to the courts that sought to
resolve contemporary disputes by enduring principles.
Furthermore, for almost a century after the adoption of the
Constitution, the Court's Commerce Clause decisions did not concern
the authority of Congress to legislate. Rather, the Court faced
the related but quite distinct question of the authority of the
States to regulate matters that would be within the commerce power
had Congress chosen to act. The simple fact was that in the early
years of the Republic, Congress seldom perceived the necessity to
exercise its power in circumstances where its authority would be
called into question. The Court's initial task, therefore, was to
elaborate the theories that would permit the States to act where
Congress had not done so. Not the least part of the problem was
the unresolved question whether the congressional power was
exclusive, a question reserved by Chief Justice Marshall in Gibbons
v. Ogden, supra, at 209-210.
At the midpoint of the 19th century, the Court embraced the
principle that the States and the National Government both have
authority to regulate certain matters absent the congressional
determination to displace local law or the necessity for the Court
to invalidate local law because of the dormant national power.
Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299,
318-321 (1852). But the utility of that solution was not at once
apparent, see generally F. Frankfurter, The Commerce Clause under
Marshall, Taney and Waite (1937) (hereinafter Frankfurter), and
difficulties of application persisted, see Leisy v. Hardin, 135 U.
S. 100, 122-125 (1890).
One approach the Court used to inquire into the lawfulness of
state authority was to draw content-based or subject-matter
distinctions, thus defining by semantic or formalistic categories
those activities that were commerce and those that were not. For
instance, in deciding that a State could prohibit the in-state
manufacture of liquor intended for out-of-state shipment, it
distinguished between manufacture and commerce. "No distinction is
more popular to the common mind, or more clearly expressed in
economic and political literature, than that between manufactur[e]
and commerce. Manufacture is transformation-the fashioning of raw
materials into a change of form for use. The functions of commerce
are different." Kidd v. Pearson, 128 U. S. 1, 20 (1888). Though
that approach likely would not have survived even if confined to
the question of a State's authority to enact legislation, it was
not at all propitious when applied to the quite different question
of what subjects were within the reach of the national power when
Congress chose to exercise it.
This became evident when the Court began to confront federal
economic regulation enacted in response to the rapid industrial
development in the late 19th century. Thus, it relied upon the
manufacture-commerce dichotomy in United States v. E. C. Knight
Co., 156 U. S. 1 (1895), where a manufacturers' combination
controlling some 98% of the Nation's domestic sugar refining
capacity was held to be outside the reach of the Sherman Act.
Conspiracies to control manufacture, agriculture, mining,
production, wages, or prices, the Court explained, had too
"indirect" an effect on interstate commerce. Id., at 16. And in
Adair v. United States, 208 U. S. 161 (1908), the Court rejected
the view that the commerce power might extend to activities that,
although local in the sense of having originated within a single
state, nevertheless had a practical effect on interstate commercial
activity. The Court concluded that there was not a "legal or
logical connection . . . between an employe's membership in a labor
organization and the carrying on of interstate commerce," id., at
178, and struck down a federal statute forbidding the discharge of
an employee because of his membership in a labor organization. See
also The Employers' Liability Cases, 207 U. S. 463, 497 (1908)
(invalidating statute creating negligence action against common
carriers for personal injuries of employees sustained in the course
of employment, because the statute "regulates the persons because
they engage in interstate commerce and does not alone regulate the
business of interstate commerce").
Even before the Court committed itself to sustaining federal
legislation on broad principles of economic practicality, it found
it necessary to depart from these decisions. The Court disavowed E.
C. Knight's reliance on the manufacturing-commerce distinction in
Standard Oil Co. of New Jersey v. United States, 221 U. S. 1, 68-69
(1911), declaring that approach "unsound." The Court likewise
rejected the rationale of Adair when it decided, in Texas & New
Orleans R. Co. v. Railway Clerks, 281 U. S. 548, 570-571 (1930),
that Congress had the power to regulate matters pertaining to the
organization of railroad workers.
In another line of cases, the Court addressed Congress' efforts
to impede local activities it considered undesirable by prohibiting
the interstate movement of some essential element. In the Lottery
Case, 188 U. S. 321 (1903), the Court rejected the argument that
Congress lacked power to prohibit the interstate movement of
lottery tickets because it had power only to regulate, not to
prohibit. See also Hipolite Egg Co. v. United States, 220 U. S. 45
(1911); Hoke v. United States, 227 U. S. 308 (1913). In Hammer v.
Dagenhart, 247 U. S. 251 (1918), however, the Court insisted that
the power to regulate commerce "is directly the contrary of the
assumed right to forbid commerce from moving," id., at 269-270, and
struck down a prohibition on the interstate transportation of goods
manufactured in violation of child labor laws.
Even while it was experiencing difficulties in finding
satisfactory principles in these cases, the Court was pursuing a
more sustainable and practical approach in other lines of
decisions, particularly those involving the regulation of railroad
rates. In the Minnesota Rate Cases, 230 U. S. 352 (1913), the
Court upheld a state rate order, but observed that Congress might
be empowered to regulate in this area if "by reason of the
interblending of the interstate and intrastate operations of
interstate carriers" the regulation of interstate rates could not
be maintained without restrictions on "intrastate rates which
substantially affect the former." Id., at 432-433. And in the
Shreveport Rate Cases, 234 U. S. 342 (1914), the Court upheld an
ICC order fixing railroad rates with the explanation that
congressional authority, "extending to these interstate carriers as
instruments of interstate commerce, necessarily embraces the right
to control their operations in all matters having such a close and
substantial relation to interstate traffic that the control is
essential or appropriate to the security of that traffic, to the
efficiency of the interstate service, and to the maintenance of
conditions under which interstate commerce may be conducted upon
fair terms and without molestation or hindrance." Id., at 351.
Even the most confined interpretation of "commerce" would
embrace transportation between the States, so the rate cases posed
much less difficulty for the Court than cases involving manufacture
or production. Nevertheless, the Court's recognition of the
importance of a practical conception of the commerce power was not
altogether confined to the rate cases. In Swift & Co. v. United
States, 196 U. S. 375 (1905), the Court upheld the application of
federal antitrust law to a combination of meat dealers that
occurred in one State but that restrained trade in cattle "sent for
sale from a place in one State, with the expectation that they will
end their transit . . . in another." Id., at 398. The Court ex-
plained that "commerce among the States is not a technical legal
conception, but a practical one, drawn from the course of
business." Id., at 398. Chief Justice Taft followed the same
approach in upholding federal regulation of stockyards in Stafford
v. Wallace, 258 U. S. 495 (1922). Speaking for the Court, he
rejected a "nice and technical inquiry," id., at 519, when the
local transactions at issue could not "be separated from the
movement to which they contribute," id., at 516.
Reluctance of the Court to adopt that approach in all of its
cases caused inconsistencies in doctrine to persist, however. In
addressing New Deal legislation the Court resuscitated the
abandoned abstract distinction between direct and indirect effects
on interstate commerce. See Carter v. Carter Coal Co., 298 U. S.
238, 309 (1936) (Act regulating price of coal and wages and hours
for miners held to have only "secondary and indirect" effect on
interstate commerce); Railroad Retirement Bd. v. Alton R. Co., 295
U. S. 330, 368 (1935) (compulsory retirement and pension plan for
railroad carrier employees too "remote from any regulation of
commerce as such"); A. L. A. Schechter Poultry Corp. v. United
States, 295 U. S. 495, 548 (1935) (wage and hour law provision of
National Industrial Recovery Act had "no direct relation to
interstate commerce").
The case that seems to mark the Court's definitive commitment to
the practical conception of the commerce power is NLRB v. Jones &
Laughlin Steel Corp., 301 U. S. 1 (1937), where the Court sustained
labor laws that applied to manufacturing facilities, making no real
attempt to distinguish Carter, supra, and Schechter, supra. 301 U.
S., at 40-41. The deference given to Congress has since been
confirmed. United States v. Darby, 312 U. S. 100, 116-117 (1941),
overruled Hammer v. Dagenhart, supra. And in Wickard v. Filburn,
317 U. S. 111 (1942), the Court disapproved E. C. Knight and the
entire line of direct-indirect and manufacture-production cases,
explaining that "broader interpretations of the Commerce Clause
[were] destined to supersede the earlier ones," id., at 122, and
"whatever terminology is used, the criterion is necessarily one of
degree and must be so defined. This does not satisfy those who
seek mathematical or rigid formulas. But such formulas are not
provided by the great concepts of the Constitution," id., at 123,
n. 24. Later examples of the exercise of federal power where
commercial transactions were the subject of regulation include
Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241
(1964), Katzenbach v. McClung, 379 U. S. 294 (1964), and Perez v.
United States, 402 U. S. 146 (1971). These and like authorities
are within the fair ambit of the Court's practical conception of
commercial regulation and are not called in question by our
decision today.
The history of our Commerce Clause decisions contains at least
two lessons of relevance to this case. The first, as stated at the
outset, is the imprecision of content- based boundaries used
without more to define the limits of the Commerce Clause. The
second, related to the first but of even greater consequence, is
that the Court as an institution and the legal system as a whole
have an immense stake in the stability of our Commerce Clause
jurisprudence as it has evolved to this point. Stare decisis
operates with great force in counseling us not to call in question
the essential principles now in place respecting the congressional
power to regulate transactions of a commercial nature. That
fundamental restraint on our power forecloses us from reverting to
an understanding of commerce that would serve only an 18th-century
economy, dependent then upon production and trading practices that
had changed but little over the preceding centuries; it also
mandates against returning to the time when congressional authority
to regulate undoubted commercial activities was limited by a
judicial determination that those matters had an insufficient
connection to an interstate system. Congress can regulate in the
commercial sphere on the assumption that we have a single market
and a unified purpose to build a stable national economy.
In referring to the whole subject of the federal and state
balance, we said this just three Terms ago:
"This framework has been sufficiently flexible over the past
two centuries to allow for enormous changes in the nature of
government. The Federal Government undertakes activities
today that would have been unimaginable to the Framers in two
senses: first, because the Framers would not have conceived
that any government would conduct such activities; and
second, because the Framers would not have believed that the
Federal Government, rather than the States, would assume such
responsibilities. Yet the powers conferred upon the Federal
Government by the Constitution were phrased in language broad
enough to allow for the expansion of the Federal Government's
role." New York v. United States, 505 U. S. ___, ___
(1992) (slip op., at 9-10) (emphasis omitted).
It does not follow, however, that in every instance the Court lacks
the authority and responsibility to review congressional attempts
to alter the federal balance. This case requires us to consider
our place in the design of the Government and to appreciate the
significance of federalism in the whole structure of the
Constitution.
Of the various structural elements in the Constitution,
separation of powers, checks and balances, judicial review, and
federalism, only concerning the last does there seem to be much
uncertainty respecting the existence, and the content, of standards
that allow the judiciary to play a significant role in maintaining
the design contemplated by the Framers. Although the resolution of
specific cases has proved difficult, we have derived from the
Constitution workable standards to assist in preserving separation
of powers and checks and balances. See, e.g., Prize Cases, 2 Black
635 (1863); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579
(1952); United States v. Nixon, 418 U. S. 683 (1974); Buckley v.
Valeo, 424 U. S. 1 (1976); INS v. Chadha, 462 U. S. 919 (1983);
Bowsher v. Synar, 478 U. S. 714 (1986); Plaut v. Spendthrift Farm,
___ U. S. ___ (1995). These standards are by now well accepted.
Judicial review is also established beyond question, Marbury v.
Madison, 1 Cranch 137 (1803), and though we may differ when
applying its principles, see, e.g., Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U. S. ___ (1992), its
legitimacy is undoubted. Our role in preserving the federal
balance seems more tenuous.
There is irony in this, because of the four structural elements
in the Constitution just mentioned, federalism was the unique
contribution of the Framers to political science and political
theory. See Friendly, Federalism: A Forward, 86 Yale L. J. 1019
(1977); G. Wood, The Creation of the American Republic, 1776-1787,
pp. 524-532, 564 (1969). Though on the surface the idea may seem
counterintuitive, it was the insight of the Framers that freedom
was enhanced by the creation of two governments, not one. "In the
compound republic of America, the power surrendered by the people
is first divided between two distinct governments, and then the
portion allotted to each subdivided among distinct and separate
departments. Hence a double security arises to the rights of the
people. The different governments will control each other, at the
same time that each will be controlled by itself." The Federalist
No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison). See also
Gregory v. Ashcroft, 501 U. S. 452, 458-459 (1991) ("Just as the
separation and independence of the coordinate branches of the
Federal Government serve to prevent the accumulation of excessive
power in any one branch, a healthy balance of power between the
States and the Federal Government will reduce the risk of tyranny
and abuse from either front. . . . In the tension between federal
and state power lies the promise of liberty"); New York v. United
States, supra, at ___ (slip op., at 34) ("[T]he Constitution
divides authority between federal and state governments for the
protection of individuals. State sovereignty is not just an end in
itself: `Rather, federalism secures to citizens the liberties that
derive from the diffusion of sovereign power'") (quoting Coleman v.
Thompson, 501 U. S. 722, 759 (1991) (Blackmun, J., dissenting)).
The theory that two governments accord more liberty than one
requires for its realization two distinct and discernable lines of
political accountability: one between the citizens and the Federal
Government; the second between the citizens and the States. If, as
Madison expected, the federal and state governments are to control
each other, see The Federalist No. 51, and hold each other in check
by competing for the affections of the people, see The Federalist
No. 46, those citizens must have some means of knowing which of the
two governments to hold accountable for the failure to perform a
given function. "Federalism serves to assign political
responsibility, not to obscure it." FTC v. Ticor Title Ins. Co.,
504 U. S. 621, 636 (1992). Were the Federal Government to take
over the regulation of entire areas of traditional state concern,
areas having nothing to do with the regulation of commercial
activities, the boundaries between the spheres of federal and state
authority would blur and political responsibility would become
illusory. See New York v. United States, supra, at ___; FERC v.
Mississippi, 456 U. S. 742, 787 (1982) (O'Connor, J., concurring in
judgment in part and dissenting in part). The resultant inability
to hold either branch of the government answerable to the citizens
is more dangerous even than devolving too much authority to the
remote central power.
To be sure, one conclusion that could be drawn from The
Federalist Papers is that the balance between national and state
power is entrusted in its entirety to the political process.
Madison's observation that "the people ought not surely to be
precluded from giving most of their confidence where they may
discover it to be most due," The Federalist No. 46, p. 295 (C.
Rossiter ed. 1961), can be interpreted to say that the essence of
responsibility for a shift in power from the State to the Federal
Government rests upon a political judgment, though he added
assurance that "the State governments could have little to
apprehend, because it is only within a certain sphere that the
federal power can, in the nature of things, be advantageously
administered," ibid. Whatever the judicial role, it is axiomatic
that Congress does have substantial discretion and control over the
federal balance.
For these reasons, it would be mistaken and mischievous for the
political branches to forget that the sworn obligation to preserve
and protect the Constitution in maintaining the federal balance is
their own in the first and primary instance. In the Webster-Hayne
Debates, see The Great Speeches and Orations of Daniel Webster
227-272 (E. Whipple ed. 1879), and the debates over the Civil
Rights Acts, see Hearings on S. 1732 before the Senate Committee on
Commerce, 88th Cong., 1st Sess., pts. 1-3 (1963), some Congresses
have accepted responsibility to confront the great questions of the
proper federal balance in terms of lasting consequences for the
constitutional design. The political branches of the Government
must fulfill this grave constitutional obligation if democratic
liberty and the federalism that secures it are to endure.
At the same time, the absence of structural mechanisms to
require those officials to undertake this principled task, and the
momentary political convenience often attendant upon their failure
to do so, argue against a complete renunciation of the judicial
role. Although it is the obligation of all officers of the
Government to respect the constitutional design, see Public Citizen
v. Department of Justice, 491 U. S. 440, 466 (1989); Rostker v.
Goldberg, 453 U. S. 57, 64 (1981), the federal balance is too
essential a part of our constitutional structure and plays too
vital a role in securing freedom for us to admit inability to
intervene when one or the other level of Government has tipped the
scales too far.
In the past this Court has participated in maintaining the
federal balance through judicial exposition of doctrines such as
abstention, see, e.g., Younger v. Harris, 401 U. S. 37 (1971);
Railroad Comm'n of Texas v. Pullman Co., 312 U. S. 496 (1941);
Burford v. Sun Oil Co., 319 U. S. 315 (1943), the rules for
determining the primacy of state law, see, e.g., Erie R. Co. v.
Tompkins, 304 U. S. 64 (1938), the doctrine of adequate and
independent state grounds, see, e.g., Murdock v. City of Memphis,
87 U. S. 590 (1875); Michigan v. Long, 463 U. S. 1032 (1983), the
whole jurisprudence of preemption, see, e.g., Rice v. Santa Fe
Elevator Corp., 331 U. S. 218 (1947); Cipollone v. Liggett Group,
Inc., 505 U. S. ___ (1992), and many of the rules governing our
habeas jurisprudence, see, e.g., Coleman v. Thompson, supra;
McCleskey v. Zant, 499 U. S. 467 (1991); Teague v. Lane, 489 U. S.
288 (1989); Rose v. Lundy, 455 U. S. 509 (1982); Wainwright v.
Sykes, 433 U. S. 72 (1977).
Our ability to preserve this principle under the Commerce Clause
has presented a much greater challenge. See supra, at 1-7. "This
clause has throughout the Court's history been the chief source of
its adjudications regarding federalism," and "no other body of
opinions affords a fairer or more revealing test of judicial
qualities." Frankfurter 66-67. But as the branch whose
distinctive duty it is to declare "what the law is," Marbury v.
Madison, 1 Cranch, at 177, we are often called upon to resolve
questions of constitutional law not susceptible to the mechanical
application of bright and clear lines. The substantial element of
political judgment in Commerce Clause matters leaves our
institutional capacity to intervene more in doubt than when we
decide cases, for instance, under the Bill of Rights even though
clear and bright lines are often absent in the latter class of
disputes. See County of Allegheny v. American Civil Liberties
Union, Greater Pittsburgh Chapter, 492 U. S. 573, 630 (1989)
(O'Connor, J., concurring in part and concurring in judgment) ("We
cannot avoid the obligation to draw lines, often close and
difficult lines" in adjudicating constitutional rights). But our
cases do not teach that we have no role at all in determining the
meaning of the Commerce Clause.
Our position in enforcing the dormant Commerce Clause is
instructive. The Court's doctrinal approach in that area has
likewise "taken some turns." Oklahoma Tax Comm'n v. Jefferson
Lines, Inc., 514 U. S. ___, ___ (1995) (slip op., at 4). Yet in
contrast to the prevailing skepticism that surrounds our ability to
give meaning to the explicit text of the Commerce Clause, there is
widespread acceptance of our authority to enforce the dormant
Commerce Clause, which we have but inferred from the constitutional
structure as a limitation on the power of the States. One element
of our dormant Commerce Clause jurisprudence has been the principle
that the States may not impose regulations that place an undue
burden on interstate commerce, even where those regulations do not
discriminate between in-state and out-of-state businesses. See
Brown-Forman Distillers Corp. v. New York State Liquor Authority,
476 U. S. 573, 579 (1986) (citing Pike v. Bruce Church, Inc., 397
U. S. 137, 142 (1970)). Distinguishing between regulations that do
place an undue burden on interstate commerce and regulations that
do not depends upon delicate judgments. True, if we invalidate a
state law, Congress can in effect overturn our judgment, whereas in
a case announcing that Congress has transgressed its authority, the
decision is more consequential, for its stands unless Congress can
revise its law to demonstrate its commercial character. This
difference no doubt informs the circumspection with which we
invalidate an Act of Congress, but it does not mitigate our duty to
recognize meaningful limits on the commerce power of Congress.
The statute before us upsets the federal balance to a degree
that renders it an unconstitutional assertion of the commerce
power, and our intervention is required. As the Chief Justice
explains, unlike the earlier cases to come before the Court here
neither the actors nor their conduct have a commercial character,
and neither the purposes nor the design of the statute have an
evident commercial nexus. See ante, at 10-12. The statute makes
the simple possession of a gun within 1,000 feet of the grounds of
the school a criminal offense. In a sense any conduct in this
interdependent world of ours has an ultimate commercial origin or
consequence, but we have not yet said the commerce power may reach
so far. If Congress attempts that extension, then at the least we
must inquire whether the exercise of national power seeks to
intrude upon an area of traditional state concern.
An interference of these dimensions occurs here, for it is well
established that education is a traditional concern of the States.
Milliken v. Bradley, 418 U. S. 717, 741-742 (1974); Epperson v.
Arkansas, 393 U. S. 97, 104 (1968). The proximity to schools,
including of course schools owned and operated by the States or
their subdivisions, is the very premise for making the conduct
criminal. In these circumstances, we have a particular duty to
insure that the federal-state balance is not destroyed. Cf. Rice,
supra, at 230 ("[W]e start with the assumption that the historic
police powers of the States" are not displaced by a federal statute
"unless that was the clear and manifest purpose of Congress");
Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 146
(1963).
While it is doubtful that any State, or indeed any reasonable
person, would argue that it is wise policy to allow students to
carry guns on school premises, considerable disagreement exists
about how best to accomplish that goal. In this circumstance, the
theory and utility of our federalism are revealed, for the States
may perform their role as laboratories for experimentation to
devise various solutions where the best solution is far from clear.
See San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1,
49-50 (1973); New State Ice Co. v. Liebmann, 285 U. S. 262, 311
(1932) (Brandeis, J., dissenting)).
If a State or municipality determines that harsh criminal
sanctions are necessary and wise to deter students from carrying
guns on school premises, the reserved powers of the States are
sufficient to enact those measures. Indeed, over 40 States already
have criminal laws outlawing the possession of firearms on or near
school grounds. See, e.g., Alaska Stat. Ann. sections
11.61.195(a)(2)(A), 11.61.220(a)(4)(A) (Supp. 1994); Cal. Penal
Code Ann. section 626.9 (West Supp. 1994); Mass. Gen. Laws section
269, 10(j) (1992); N. J. Stat. Ann. section 2C:39-5(e) (West Supp.
1994); Va. Code Ann. section 18.2-308.1 (1988); Wis. Stat. section
948.605 (1991-1992).
Other, more practicable means to rid the schools of guns may be
thought by the citizens of some States to be preferable for the
safety and welfare of the schools those States are charged with
maintaining. See Brief for National Conference of State
Legislatures et al., as Amici Curiae 26-30 (injection of federal
officials into local problems causes friction and diminishes
political accountability of state and local governments). These
might include inducements to inform on violators where the
information leads to arrests or confiscation of the guns, see C.
Lima, Schools May Launch Weapons Hot Line, L. A. Times, Jan. 13,
1995, part B, p. 1, col. 5; Reward for Tips on Guns in Tucson
Schools, The Arizona Republic, Jan. 7, 1995, p. B2; programs to
encourage the voluntary surrender of guns with some provision for
amnesty, see A. Zaidan, Akron Rallies to Save Youths, The Plain
Dealer, Mar. 2, 1995, p. 1B; M. Swift, Legislators Consider Plan to
Get Guns Off Streets, Hartford Courant, Apr. 29, 1992, p. A4;
penalties imposed on parents or guardians for failure to supervise
the child, see, e.g., Okla. Stat., Tit. 21, section 858 (Supp.
1995) (fining parents who allow students to possess firearm at
school); Tenn. Code Ann. section 39-17-1312 (Supp. 1992)
(misdemeanor for parents to allow student to possess firearm at
school); Straight Shooter: Gov. Casey's Reasonable Plan to Control
Assault Weapons, Pittsburgh Post-Gazette, Mar. 14, 1994, p. B2
(proposed bill); E. Bailey, Anti-Crime Measures Top Legislators'
Agenda, L. A. Times, Mar. 7, 1994, part B, p. 1, col. 2 (same); G.
Krupa, New Gun-Control Plans Could Tighten Local Law, The Boston
Globe, June 20, 1993, p. 29; laws providing for suspension or
expulsion of gun-toting students, see, e.g., Ala. Code section
16-1-24.1 (Supp. 1994); Ind. Code section 20-8.1-5-4(b)(1)(D)
(1993); Ky. Rev. Stat. Ann. section 158.150(1)(a) (Michie 1992);
Wash. Rev. Code section 9.41.280 (1994), or programs for expulsion
with assignment to special facilities, see J. Martin, Legislators
Poised to Take Harsher Stand on Guns in Schools, The Seattle Times,
Feb. 1, 1995, p. B1 (automatic-year-long expulsion for students
with guns and intense semester- long reentry program).
The statute now before us forecloses the States from
experimenting and exercising their own judgment in an area to which
States lay claim by right of history and expertise, and it does so
by regulating an activity beyond the realm of commerce in the
ordinary and usual sense of that term. The tendency of this
statute to displace state regulation in areas of traditional state
concern is evident from its territorial operation. There are over
100,000 elementary and secondary schools in the United States. See
U. S. Dept. of Education, National Center for Education Statistics,
Digest of Education Statistics 73, 104 (NCES 94-115, 1994) (Tables
63, 94). Each of these now has an invisible federal zone extending
1,000 feet beyond the (often irregular) boundaries of the school
property. In some communities no doubt it would be difficult to
navigate without infringing on those zones. Yet throughout these
areas, school officials would find their own programs for the
prohibition of guns in danger of displacement by the federal
authority unless the State chooses to enact a parallel rule.
This is not a case where the etiquette of federalism has been
violated by a formal command from the National Government directing
the State to enact a certain policy, cf. New York v. United States,
505 U. S. ___ (1992), or to organize its governmental functions in
a certain way, cf. FERC v. Mississippi, 456 U. S., at 781
(O'Connor, J., concurring in judgment in part and dissenting in
part). While the intrusion on state sovereignty may not be as
severe in this instance as in some of our recent Tenth Amendment
cases, the intrusion is nonetheless significant. Absent a stronger
connection or identification with commercial concerns that are
central to the Commerce Clause, that interference contradicts the
federal balance the Framers designed and that this Court is obliged
to enforce.
For these reasons, I join in the opinion and judgment of the
Court.
Justice Thomas, concurring.
The Court today properly concludes that the Commerce Clause does
not grant Congress the authority to prohibit gun possession within
1,000 feet of a school, as it attempted to do in the Gun-Free
School Zones Act of 1990, Pub. L. 101-647, 104 Stat. 4844.
Although I join the majority, I write separately to observe that
our case law has drifted far from the original understanding of the
Commerce Clause. In a future case, we ought to temper our Commerce
Clause jurisprudence in a manner that both makes sense of our more
recent case law and is more faithful to the original understanding
of that Clause.
We have said that Congress may regulate not only "Commerce . .
. among the several states," U. S. Const., Art. I, 8, cl. 3, but
also anything that has a "substantial effect" on such commerce.
This test, if taken to its logical extreme, would give Congress a
"police power" over all aspects of American life. Unfortunately,
we have never come to grips with this implication of our
substantial effects formula. Although we have supposedly applied
the substantial effects test for the past 60 years, we always have
rejected readings of the Commerce Clause and the scope of federal
power that would permit Congress to exercise a police power; our
cases are quite clear that there are real limits to federal power.
See New York v. United States, 505 U. S. ___, ___ (1992) (slip op.,
at 7) ("[N]o one disputes the proposition that `[t]he Constitution
created a Federal Government of limited powers'") (quoting Gregory
v. Ashcroft, 501 U. S. 452, 457 (1991); Maryland v. Wirtz, 392 U.
S. 183, 196 (1968); NLRB v. Jones & Laughlin Steel Corp., 301 U. S.
1, 37 (1937). Cf. Chisholm v. Georgia, 2 Dall. 419, 435 (1793)
(Iredell, J.) ("Each State in the Union is sovereign as to all the
powers reserved. It must necessarily be so, because the United
States have no claim to any authority but such as the States have
surrendered to them"). Indeed, on this crucial point, the majority
and Justice Breyer agree in principle: the Federal Government has
nothing approaching a police power. Compare ante, at 7-9 with
post, at 10-11.
While the principal dissent concedes that there are limits to
federal power, the sweeping nature of our current test enables the
dissent to argue that Congress can regulate gun possession. But it
seems to me that the power to regulate "commerce" can by no means
encompass authority over mere gun possession, any more than it
empowers the Federal Government to regulate marriage, littering, or
cruelty to animals, throughout the 50 States. Our Constitution
quite properly leaves such matters to the individual States,
notwithstanding these activities' effects on interstate commerce.
Any interpretation of the Commerce Clause that even suggests that
Congress could regulate such matters is in need of reexamination.
In an appropriate case, I believe that we must further
reconsider our "substantial effects" test with an eye toward
constructing a standard that reflects the text and history of the
Commerce Clause without totally rejecting our more recent Commerce
Clause jurisprudence. Today, however, I merely support the
Court's conclusion with a discussion of the text, structure, and
history of the Commerce Clause and an analysis of our early case
law. My goal is simply to show how far we have departed from the
original understanding and to demonstrate that the result we reach
today is by no means "radical," see post, at 1 (Stevens, J.,
dissenting). I also want to point out the necessity of
refashioning a coherent test that does not tend to "obliterate the
distinction between what is national and what is local and create
a completely centralized government." Jones & Laughlin Steel Corp,
supra, at 37.
I
At the time the original Constitution was ratified, "commerce"
consisted of selling, buying, and bartering, as well as
transporting for these purposes. See 1 S. Johnson, A Dictionary of
the English Language 361 (4th ed. 1773) (defining commerce as
"Intercour[s]e; exchange of one thing for another; interchange of
any thing; trade; traffick"); N. Bailey, An Universal Etymological
English Dictionary (26th ed. 1789) ("trade or traffic"); T. Sheri-
dan, A Complete Dictionary of the English Language (6th ed. 1796)
("Exchange of one thing for another; trade, traffick"). This
understanding finds support in the etymology of the word, which
literally means "with merchandise." See 3 Oxford English
Dictionary 552 (2d ed. 1989) (com-"with"; merci-"merchandise"). In
fact, when Federalists and Anti-Federalists discussed the Commerce
Clause during the ratification period, they often used trade (in
its selling/bartering sense) and commerce interchangeably. See The
Federalist No. 4, p. 22 (J. Jay) (asserting that countries will
cultivate our friendship when our "trade" is prudently regulated by
Federal Government); [footnote 1] id., No. 7, at 39-40 (A.
Hamilton) (discussing "competitions of commerce" between States
resulting from state "regulations of trade"); id., No. 40, at 262
(J. Madison) (asserting that it was an "acknowledged object of the
Convention . . . that the regulation of trade should be submitted
to the general government"); Lee, Letters of a Federal Farmer No.
5, in Pamphlets on the Constitution of the United States 319 (P.
Ford ed. 1888); Smith, An Address to the People of the State of
New-York, in id., at 107.
As one would expect, the term "commerce" was used in
contradistinction to productive activities such as manufacturing
and agriculture. Alexander Hamilton, for example, repeatedly
treated commerce, agriculture, and manufacturing as three separate
endeavors. See, e.g., The Federalist No. 36, at 224 (referring to
"agriculture, commerce, manufactures"); id., No. 21, at 133
(distinguishing commerce, arts, and industry); id., No. 12, at 74
(asserting that commerce and agriculture have shared interests).
The same distinctions were made in the state ratification
conventions. See e.g., 2 Debates in the Several State Conventions
on the Adoption of the Federal Constitution 57 (J. Elliot ed. 1836)
(hereinafter Debates) (T. Dawes at Massachusetts convention); id.,
at 336 (M. Smith at New York convention).
Moreover, interjecting a modern sense of commerce into the
Constitution generates significant textual and structural problems.
For example, one cannot replace "commerce" with a different type of
enterprise, such as manufacturing. When a manufacturer produces a
car, assembly cannot take place "with a foreign nation" or "with
the Indian Tribes." Parts may come from different States or other
nations and hence may have been in the flow of commerce at one
time, but manufacturing takes place at a discrete site.
Agriculture and manufacturing involve the production of goods;
commerce encompasses traffic in such articles.
The Port Preference Clause also suggests that the term
"commerce" denoted sale and/or transport rather than business
generally. According to that Clause, "[n]o Preference shall be
given by any Regulation of Commerce or Revenue to the Ports of one
State over those of another." U. S. Const., Art. I, section 9, cl.
6. Although it is possible to conceive of regulations of
manufacturing or farming that prefer one port over another, the
more natural reading is that the Clause prohibits Congress from
using its commerce power to channel commerce through certain
favored ports.
The Constitution not only uses the word "commerce" in a narrower
sense than our case law might suggest, it also does not support the
proposition that Congress has authority over all activities that
"substantially affect" interstate commerce. The Commerce Clause
[footnote 2] does not state that Congress may "regulate matters
that substantially affect commerce with foreign Nations, and among
the several States, and with the Indian Tribes." In contrast, the
Constitution itself temporarily prohibited amendments that would
"affect" Congress' lack of authority to prohibit or restrict the
slave trade or to enact unproportioned direct taxation. U. S.
Const., Art. V. Clearly, the Framers could have drafted a
Constitution that contained a "substantially affects interstate
commerce" clause had that been their objective.
In addition to its powers under the Commerce Clause, Congress
has the authority to enact such laws as are "necessary and proper"
to carry into execution its power to regulate commerce among the
several States. U. S. Const., Art. I, section 8, cl. 18. But on
this Court's understanding of congressional power under these two
Claus- es, many of Congress' other enumerated powers under Art. I,
8 are wholly superfluous. After all, if Congress may regulate all
matters that substantially affect commerce, there is no need for
the Constitution to specify that Congress may enact bankruptcy
laws, cl. 4, or coin money and fix the standard of weights and
measures, cl. 5, or punish counterfeiters of United States coin and
securities, cl. 6. Likewise, Congress would not need the separate
authority to establish post offices and post roads, cl. 7, or to
grant patents and copyrights, cl. 8, or to "punish Piracies and
Felonies committed on the high Seas," cl. 10. It might not even
need the power to raise and support an Army and Navy, cls. 12 and
13, for fewer people would engage in commercial shipping if they
thought that a foreign power could expropriate their property with
ease. Indeed, if Congress could regulate matters that
substantially affect interstate commerce, there would have been no
need to specify that Congress can regulate international trade and
commerce with the Indians. As the Framers surely understood, these
other branches of trade substantially affect inter-state commerce.
Put simply, much if not all of Art. I, section 8 (including
portions of the Commerce Clause itself) would be surplusage if
Congress had been given authority over matters that substantially
affect interstate commerce. An interpretation of cl. 3 that makes
the rest of section 8 superfluous simply cannot be correct. Yet
this Court's Commerce Clause jurisprudence has endorsed just such
an interpretation: the power we have accorded Congress has
swallowed Art. I, section 8. [footnote 3]
Indeed, if a "substantial effects" test can be appended to the
Commerce Clause, why not to every other power of the Federal
Government? There is no reason for singling out the Commerce
Clause for special treatment. Accordingly, Congress could regulate
all matters that "substantially affect" the Army and Navy,
bankruptcies, tax collection, expenditures, and so on. In that
case, the clauses of section 8 all mutually overlap, something we
can assume the Founding Fathers never intended.
Our construction of the scope of congressional authority has the
additional problem of coming close to turning the Tenth Amendment
on its head. Our case law could be read to reserve to the United
States all powers not expressly prohibited by the Constitution.
Taken together, these fundamental textual problems should, at the
very least, convince us that the "substantial effects" test should
be reexamined.
II
The exchanges during the ratification campaign reveal the
relatively limited reach of the Commerce Clause and of federal
power generally. The Founding Fathers confirmed that most areas of
life (even many matters that would have substantial effects on
commerce) would remain outside the reach of the Federal Government.
Such affairs would continue to be under the exclusive control of
the States.
Early Americans understood that commerce, manufacturing, and
agriculture, while distinct activities, were intimately related and
dependent on each other-that each "substantially affected" the
others. After all, items produced by farmers and manufacturers
were the primary articles of commerce at the time. If commerce was
more robust as a result of federal superintendence, farmers and
manufacturers could benefit. Thus, Oliver Ellsworth of Connecticut
attempted to convince farmers of the benefits of regulating
commerce. "Your property and riches depend on a ready demand and
generous price for the produce you can annually spare," he wrote,
and these conditions exist "where trade flourishes and when the
merchant can freely export the produce of the country" to nations
that will pay the highest price. A Landholder No. 1, Connecticut
Courant, Nov. 5, 1787, in 3 Documentary History of the Ratification
of the Constitution 399 (M. Jensen ed. 1978) (hereinafter Docu-
mentary History). See also The Federalist No. 35, at 219 (A.
Hamilton) ("[D]iscerning citizens are well aware that the mechanic
and manufacturing arts furnish the materials of mercantile
enterprise and industry. Many of them indeed are immediately
connected with the operations of commerce. They know that the
merchant is their natural patron and friend"); id., at 221 ("Will
not the merchant . . . be disposed to cultivate . . . the interests
of the mechanic and manufacturing arts to which his commerce is so
nearly allied?"); A Jerseyman: To the Citizens of New Jersey,
Trenton Mercury, Nov. 6, 1787, in 3 Documentary History 147 (noting
that agriculture will serve as a "source of commerce"); Marcus, The
New Jersey Journal, Nov. 14, 1787, id., at 152 (both the mechanic
and the farmer benefit from the prosperity of commerce). William
Davie, a delegate to the North Carolina Convention, illustrated the
close link best: "Commerce, sir, is the nurse of [agriculture and
manufacturing]. The merchant furnishes the planter with such
articles as he cannot manufacture himself, and finds him a market
for his produce. Agriculture cannot flourish if commerce
languishes; they are mutually dependent on each other." 4 Debates
20.
Yet, despite being well aware that agriculture, manufacturing,
and other matters substantially affected commerce, the founding
generation did not cede authority over all these activities to
Congress. Hamilton, for instance, acknowledged that the Federal
Government could not regulate agriculture and like concerns:
"The administration of private justice between the citizens of
the same State, the supervision of agriculture and of other
concerns of a similar nature, all those things in short which
are proper to be provided for by local legislation, can never
be desirable cares of a general jurisdiction." The Federalist
No. 17, at 106. In the unlikely event that the Federal
Government would attempt to exercise authority over such
matters, its effort "would be as troublesome as it would be
nugatory." Ibid. [footnote 4]
The comments of Hamilton and others about federal power
reflected the well-known truth that the new Government would have
only the limited and enumerated powers found in the Constitution.
See, e.g., 2 Debates 267-268 (A. Hamilton at New York convention)
(noting that there would be just cause for rejecting the Constitu-
tion if it would enable the Federal Government to "alter, or
abrogate . . . [a state's] civil and criminal institutions [or]
penetrate the recesses of domestic life, and control, in all
respects, the private conduct of individuals"); The Federalist No.
45, at 313 (J. Madison); 3 Debates 259 (J. Madison) (Virginia
convention); R. Sherman & O. Ellsworth, Letter to Governor
Huntington, Sept. 26, 1787, in 3 Documentary History 352; J.
Wilson, Speech in the State House Yard, Oct. 6, 1787, in 2 id., at
167-168. Agriculture and manufacture, since they were not
surrendered to the Federal Government, were state concerns. See
The Federalist No. 34, at 212-213 (A. Hamilton) (observing that the
"internal encouragement of agriculture and manufactures" was an
object of state expenditure). Even before the passage of the Tenth
Amendment, it was apparent that Congress would possess only those
powers "herein granted" by the rest of the Constitution. U. S.
Const., Art. I, 1.
Where the Constitution was meant to grant federal authority over
an activity substantially affecting interstate commerce, the
Constitution contains an enumerated power over that particular
activity. Indeed, the Framers knew that many of the other
enumerated powers in 8 dealt with matters that substantially
affected interstate commerce. Madison, for instance, spoke of the
bankruptcy power as being "intimately connected with the regulation
of commerce." The Federalist No. 42, at 287. Likewise, Hamilton
urged that "[i]f we mean to be a commercial people or even to be
secure on our Atlantic side, we must endeavour as soon as possible
to have a navy." Id., No. 24, at 157 (A. Hamilton).
In short, the Founding Fathers were well aware of what the
principal dissent calls "`economic . . . realities.'" See post, at
11-12 (Breyer, J.) (citing North American Co. v. SEC, 327 U. S.
686, 705 (1946)). Even though the boundary between commerce and
other matters may ignore "economic reality" and thus seem arbitrary
or artificial to some, we must nevertheless respect a
constitutional line that does not grant Congress power over all
that substantially affects interstate commerce.
III
If the principal dissent's understanding of our early case law
were correct, there might be some reason to doubt this view of the
original understanding of the Constitution. According to that
dissent, Chief Justice Marshall's opinion in Gibbons v. Ogden, 9
Wheat. 1 (1824) established that Congress may control all local
activities that "significantly affect interstate commerce," post,
at 1. And, "with the exception of one wrong turn subsequently
corrected," this has been the "traditiona[l]" method of
interpreting the Commerce Clause. Post, at 18 (citing Gibbons and
United States v. Darby, 312 U. S. 100, 116-117 (1941)).
In my view, the dissent is wrong about the holding and reasoning
of Gibbons. Because this error leads the dissent to characterize
the first 150 years of this Court's case law as a "wrong turn," I
feel compelled to put the last 50 years in proper perspective.
A
In Gibbons, the Court examined whether a federal law that
licensed ships to engage in the "coasting trade" preempted a New
York law granting a 30-year monopoly to Robert Livingston and
Robert Fulton to navigate the State's waterways by steamship. In
concluding that it did, the Court noted that Congress could
regulate "navigation" because "[a]ll America . . . has uniformly
understood, the word `commerce,' to comprehend navigation. It was
so understood, and must have been so under- stood, when the
constitution was framed." 9 Wheat., at 190. The Court also
observed that federal power over commerce "among the several
States" meant that Congress could regulate commerce conducted
partly within a State. Because a portion of interstate commerce
and foreign commerce would almost always take place within one or
more States, federal power over interstate and foreign commerce
necessarily would extend into the States. Id., at 194-196.
At the same time, the Court took great pains to make clear that
Congress could not regulate commerce "which is completely internal,
which is carried on between man and man in a State, or between
different parts of the same State, and which does not extend to or
affect other States." Id., at 194. Moreover, while suggesting
that the Constitution might not permit States to regulate
interstate or foreign commerce, the Court observed that
"[i]nspection laws, quarantine laws, health laws of every
description, as well as laws for regulating the internal commerce
of a State" were but a small part "of that immense mass of
legislation . . . not surrendered to a general government." Id.,
at 203. From an early moment, the Court rejected the notion that
Congress can regulate everything that affects interstate commerce.
That the internal commerce of the States and the numerous state
inspection, quarantine, and health laws had substantial effects on
interstate commerce cannot be doubted. Nevertheless, they were not
"surrendered to the general government."
Of course, the principal dissent is not the first to misconstrue
Gibbons. For instance, the Court has stated that Gibbons
"described the federal commerce power with a breadth never yet
exceeded." Wickard v. Filburn, 317 U. S. 111, 120 (1942). See
also Perez v. United States, 402 U. S. 146, 151 (1971) (claiming
that with Darby and Wickard, "the broader view of the Commerce
Clause announced by Chief Justice Marshall had been restored"). I
believe that this misreading stems from two statements in Gibbons.
First, the Court made the uncontroversial claim that federal
power does not encompass "commerce" that "does not extend to or
affect other States." 9 Wheat., at 194 (emphasis added). From
this statement, the principal dissent infers that whenever an
activity affects interstate commerce, it necessarily follows that
Congress can regulate such activities. Of course, Chief Justice
Marshall said no such thing and the inference the dissent makes
cannot be drawn.
There is a much better interpretation of the "affect[s]"
language: because the Court had earlier noted that the commerce
power did not extend to wholly intrastate commerce, the Court was
acknowledging that although the line between intrastate and
interstate/foreign commerce would be difficult to draw, federal
authority could not be construed to cover purely intrastate
commerce. Commerce that did not affect another State could never
be said to be commerce "among the several States."
But even if one were to adopt the dissent's reading, the
"affect[s]" language, at most, permits Congress to regulate only
intrastate commerce that substantially affects interstate and
foreign commerce. There is no reason to believe that Chief Justice
Marshall was asserting that Congress could regulate all activities
that affect interstate commerce. See Ibid.
The second source of confusion stems from the Court's praise for
the Constitution's division of power between the States and the
Federal Government:
"The genius and character of the whole government seem to be,
that its action is to be applied to all the external concerns
of the nation, and to those internal concerns which affect the
States generally; but not to those which are completely within
a particular State, which do not affect other States, and with
which it is not necessary to interfere, for the purpose of
executing some of the general powers of the government." Id.,
at 195.
In this passage, the Court merely was making the well understood
point that the Constitution commits matters of "national" concern
to Congress and leaves "local" matters to the States. The Court
was not saying that whatever Congress believes is a national matter
becomes an object of federal control. The matters of national
concern are enumerated in the Constitution: war, taxes, patents,
and copyrights, uniform rules of naturalization and bankruptcy,
types of commerce, and so on. See generally U. S. Const., Art. I,
section 8. Gibbons' emphatic statements that Congress could not
regulate many matters that affect commerce confirm that the Court
did not read the Commerce Clause as granting Congress control over
matters that "affect the States generally." [footnote 5] Gibbons
simply cannot be construed as the principal dissent would have it.
B
I am aware of no cases prior to the New Deal that characterized
the power flowing from the Commerce Clause as sweepingly as does
our substantial effects test. My review of the case law indicates
that the substantial effects test is but an innovation of the 20th
century.
Even before Gibbons, Chief Justice Marshall, writing for the
Court in Cohens v. Virginia, 6 Wheat. 264 (1821), noted that
Congress had "no general right to punish murder committed within
any of the States," id., at 426, and that it was "clear that
congress cannot punish felonies generally," id., at 428. The
Court's only qualification was that Congress could enact such laws
for places where it enjoyed plenary powers-for instance, over the
District of Columbia. Id., at 426. Thus, whatever effect ordinary
murders, or robbery, or gun possession might have on interstate
commerce (or on any other subject of federal concern) was
irrelevant to the question of congressional power. [footnote 6]
United States v. Dewitt, 9 Wall. 41 (1870), marked the first
time the Court struck down a federal law as exceeding the power
conveyed by the Commerce Clause. In a two-page opinion, the Court
invalidated a nationwide law prohibiting all sales of naphtha and
illuminating oils. In so doing, the Court remarked that the
Commerce Clause "has always been understood as limited by its
terms; and as a virtual denial of any power to interfere with the
internal trade and business of the separate States." Id., at 44.
The law in question was "plainly a regulation of police," which
could have constitutional application only where Congress had
exclusive authority, such as the territories. Id., at 44-45. See
also License Tax Cases, 5 Wall. 462, 470-471 (1867) (Congress
cannot interfere with the internal commerce and business of a
State); Trade-Mark Cases, 100 U. S. 82 (1879) (Congress cannot
regulate internal commerce and thus may not establish national
trademark registration).
In United States v. E. C. Knight Co., 156 U. S. 1 (1895), this
Court held that mere attempts to monopolize the manufacture of
sugar could not be regulated pursuant to the Commerce Clause.
Raising echoes of the discussions of the Framers regarding the
intimate relationship between commerce and manufacturing, the Court
declared that "[c]ommerce succeeds to manufacture, and is not a
part of it." Id., at 12. The Court also approvingly quoted from
Kidd v. Pearson, 128 U. S. 1, 20 (1888):
"`No distinction is more popular to the common mind, or more
clearly expressed in economic and political literature, than
that between manufacture and commerce . . . . If it be held
that the term [commerce] includes the regulation of all such
manufactures as are intended to be the subject of commercial
transactions in the future, it is impossible to deny that it
would also include all productive industries that contemplate
the same thing. The result would be that Congress would be
invested . . . with the power to regulate, not only
manufactures, but also agriculture, horticulture, stock rais-
ing, domestic fisheries, mining-in short, every branch of
human industry.'" E. C. Knight, 156 U. S., at 14.
If federal power extended to these types of production
"comparatively little of business operations and affairs would be
left for state control." Id., at 16. See also Newberry v. United
States, 256 U. S. 232, 257 (1921) ("It is settled . . . that the
power to regulate interstate and foreign commerce does not reach
whatever is essential thereto. Without agriculture, manufacturing,
mining, etc., commerce could not exist, but this fact does not
suffice to subject them to the control of Congress"). Whether or
not manufacturing, agriculture, or other matters substantially
affected interstate commerce was irrelevant.
As recently as 1936, the Court continued to insist that the
Commerce Clause did not reach the wholly internal business of the
States. See Carter v. Carter Coal Co., 298 U. S. 238, 308 (1936)
(Congress may not regulate mine labor because "[t]he relation of
employer and employee is a local relation"); see also A. L. A.
Schechter Poultry Corp. v. United States, 295 U. S. 495, 543-550
(1935) (holding that Congress may not regulate intrastate sales of
sick chickens or the labor of employees involved in intrastate
poultry sales). The Federal Government simply could not reach such
subjects regardless of their effects on interstate commerce.
These cases all establish a simple point: from the time of the
ratification of the Constitution to the mid-1930's, it was widely
understood that the Constitution granted Congress only limited
powers, notwithstanding the Commerce Clause. [footnote 7]
Moreover, there was no question that activities wholly separated
from business, such as gun possession, were beyond the reach of the
commerce power. If anything, the "wrong turn" was the Court's
dramatic departure in the 1930's from a century and a half of
precedent.
IV
Apart from its recent vintage and its corresponding lack of any
grounding in the original understanding of the Constitution, the
substantial effects test suffers from the further flaw that it
appears to grant Congress a police power over the Nation. When
asked at oral argument if there were any limits to the Commerce
Clause, the Government was at a loss for words. Tr. of Oral Arg.
5. Likewise, the principal dissent insists that there are limits,
but it cannot muster even one example. Post, at 10-11. Indeed,
the dissent implicitly concedes that its reading has no limits when
it criticizes the Court for "threaten[ing] legal uncertainty in an
area of law that . . . seemed reasonably well settled." Post, at
17-18. The one advantage of the dissent's standard is certainty:
it is certain that under its analysis everything may be regulated
under the guise of the Commerce Clause.
The substantial effects test suffers from this flaw, in part,
because of its "aggregation principle." Under so- called "class of
activities" statutes, Congress can regulate whole categories of
activities that are not themselves either "interstate" or
"commerce." In applying the effects test, we ask whether the class
of activities as a whole substantially affects interstate commerce,
not whether any specific activity within the class has such effects
when considered in isolation. See Maryland v. Wirtz, 392 U. S., at
192-193 (if class of activities is "`within the reach of federal
power,'" courts may not excise individual applications as trivial)
(quoting Darby, 312 U. S., at 120-121).
The aggregation principle is clever, but has no stopping point.
Suppose all would agree that gun possession within 1,000 feet of a
school does not substantially affect commerce, but that possession
of weapons generally (knives, brass knuckles, nunchakus, etc.)
does. Under our substantial effects doctrine, even though Congress
cannot single out gun possession, it can prohibit weapon possession
generally. But one always can draw the circle broadly enough to
cover an activity that, when taken in isolation, would not have
substantial effects on commerce. Under our jurisprudence, if
Congress passed an omnibus "substantially affects interstate
commerce" statute, purporting to regulate every aspect of human
existence, the Act apparently would be constitutional. Even though
particular sections may govern only trivial activities, the statute
in the aggregate regulates matters that substantially affect
commerce.
V
This extended discussion of the original understanding and our
first century and a half of case law does not necessarily require
a wholesale abandonment of our more recent opinions. [footnote 8]
It simply reveals that our substantial effects test is far removed
from both the Constitution and from our early case law and that the
Court's opinion should not be viewed as "radical" or another "wrong
turn" that must be corrected in the future. [footnote 9] The
analysis also suggests that we ought to temper our Commerce Clause
jurisprudence.
Unless the dissenting Justices are willing to repudiate our
long-held understanding of the limited nature of federal power, I
would think that they too must be willing to reconsider the
substantial effects test in a future case. If we wish to be true
to a Constitution that does not cede a police power to the Federal
Government, our Commerce Clause's boundaries simply cannot be
"defined" as being "`commensurate with the national needs'" or
self-consciously intended to let the Federal Government "`defend
itself against economic forces that Congress decrees inimical or
destructive of the national economy.'" See post, at 12-13 )Breyer,
J., dissenting) (quoting North American Co. v. SEC, 327 U. S. 686,
705 (1946)). Such a formulation of federal power is no test at
all: it is a blank check.
At an appropriate juncture, I think we must modify our Commerce
Clause jurisprudence. Today, it is easy enough to say that the
Clause certainly does not empower Congress to ban gun possession
within 1,000 feet of a school.
FOOTNOTES
1. All references to the Federalist are to the Jacob E. Cooke 1961
edition.
2. Even to speak of the "Commerce Clause" perhaps obscures the
actual scope of that Clause. As an original matter, Congress did
not have authority to regulate all commerce: Congress could only
"regulate Commerce with foreign Nations, and among the several
states, and with the Indian Tribes." U.S. Const. Art. 1, section 8,
cl. 3. Although the precise line between interstate/foreign
commerce and purely intrastate commerce was hard to draw, the Court
attempted to adhere to such a line for the first 150 years of our
Nation see infra. at __.
3. There are other powers granted to Congress outside of Art. 1
section 8 that may become wholly superfluous as well due to our
distortion of the Commerce Clause. For instance, Congress has
plenary power over the District of Columbia and the territories.
See U.S. Const. Art. 1 section 8, cl. 15 and Art. IV section 3, cl.
2. The grant of comprehensive legislative power in certain areas
of the Nation, when read in conjunction with the rest of the
Constitution, further confirms that Congress was not ceded plenary
authority over the whole Nation.
4. Cf. 3 Debates 40 (E. Pendleton at the Virginia convention) (the
proposed Federal Government "does not intermeddle with the local,
particular affairs of the states. Can Congress legislate for the
state of Virginia? Can [it] make a law altering the form of
transferred property, or the rule of decents, in Virginia?"); id.,
at 553 (J. Marshall at the Virginia convention) (denying tat
Congress could make "laws affecting the mode of transferring
property, or contracts, or claims, between citizens of the same
state"); The Federalist No. 33, at 206 (A. Hamilton) (denying that
Congress could change laws of decent or could pre-empt a land tax);
A Native of Virginia: Observations upon the Proposed Plan of
Federal Government, Apr. 2, 1788, in 9 Documentary History 692
(States have sole authority over "rules of property").
5. None of the other Commerce Clause opinions during Chief Justice
marshall's tenure, which concerned the "dormant" Commerce Clause,
even suggested that Congress had authority over all matters
substantially affecting commerce. See Brown v. Maryland, 12 Wheat.
419, 6 L.Ed. 678 (1827); Willson v. Black Bird Creek Marsh Co., 2
Pet. 245, 7 L.Ed. 412 (1829).
6. It is worth noting that Congress in the first federal criminal
Act, did not establish nationwide prohibition against murder and
the like. See Act of April 30, 1790, ch. 9 1 Stat. 112. To be
sure, Congress outlawed murder, manslaughter, maiming and larceny,
but only when those acts were either committed on United States
territory not part of a State or on the high seas. Ibid. See U.S.
Const. Art. 1 section 8 cl. 10 (authorizing Congress to outlaw
piracy and felonies on the high seas); Art. IV section 3, cl. 2
(plenary authority over United States territory and property).
When Congress did enact nationwide criminal laws, it acted pursuant
to direct grants of authority found in the Constitution. Compare
act of April 30, 1790, supra sections 1 and 14 (prohibitions
against treason and counterfeiting of U.S. securities) with U.S.
Const. Art. 1, section 8, cl. 6 (counterfeiting); Art. III section
3, cl. 2 (treason). Notwithstanding any substantial effects that
murder, kidnapping, or gun possession might have had on interstate
commerce, Congress understood it could not establish nationwide
prohibitions.
Likewise, there were no laws in the early Congresses that
regulated manufacturing or agriculture. Nor was there any statute
which purported to regulate activities with "substantial effects"
on interstate commerce.
7. To be sure, congressional power pursuant to the Commerce Clause
was alternatively described less narrowly or more narrowly during
this 150-year period. Compare United States v. Coombs, 12 Pet. 72,
78, 9 L.Ed. 1004 (1838) (commerce power "extends to such acts done
on land, which interfere with, obstruct, or prevent the due
exercise of power to regulate [interstate and international]
commerce" such as stealing goods from a beached ship) with united
States v. E.C. Knight Co., 156 U.S. 1, 13, 15 S.Ct. 249, 254, 39
L.Ed. 325 (1895) ("Contracts to buy, sell, or exchange goods to be
transported among the several States, the transportation and its
instrumentalities . . . may be regulated, but this is because they
form part of the interstate trade or commerce"). During this
period, however, this Court never held that Congress could regulate
everything that substantially affects commerce.
8. Although I might be willing to return to the original
understanding, I recognize that many believe it is too late in the
day to undertake a fundamental reexamination of the past 60 years.
Consideration of stare decisis and reliance interests may convince
us that we cannot wipe the slate clean.
9. Nor can the majority's opinion fairly be compared to Lochner v.
New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). See
post, at ___, Souter, J., dissenting). Unlike Lochner and our more
recent "substantive due process" cases, today's decision enforces
only the Constitution and not "judicial policy judgments." See
post, at ___. Notwithstanding Justice Souter's discussion,
"'commercial' character" is not only a natural but an inevitable
"ground of Commerce Clause distinction." See post, at ___
(emphasis added). Our invalidation of the Gun Free School Zones
Act therefore falls comfortable within our proper role in reviewing
federal legislation to determine if it exceeds congressional
authority as defined by the Constitution itself. As John Marshall
put it: "If [Congress] were to make a law not warranted by any of
the powers enumerated, it would be considered by the judges as an
infringement of the Constitution which they are to guard . . . They
would declare it void." 3 Debates 553 (before the Virginia
ratifying convention); see also The Federalist No. 44, at 305
(James Madison) (asserting that if Congress exercises powers "not
warranted by [the Constitution's] true meaning " the judiciary will
defend the Constitution); id., No. 78, at 526 (A. Hamilton)
(asserting that the "courts of justice are to be considered the as
the bulwarks of a limited constitution against legislative
encroachments"). Where, as here, there is a case or controversy,
there can be no "misstep", post, at ___, in enforcing the
Constitution.
Justice Stevens, dissenting.
The welfare of our future "Commerce with foreign Nations, and
among the several States," U. S. Const., Art. I, section 8, cl. 3,
is vitally dependent on the character of the education of our
children. I therefore agree entirely with Justice Breyer's
explanation of why Congress has ample power to prohibit the
possession of firearms in or near schools-just as it may protect
the school environment from harms posed by controlled substances
such as asbestos or alcohol. I also agree with Justice Souter's
exposition of the radical character of the Court's holding and its
kinship with the discredited, pre-Depression version of substantive
due process. Cf. Dolan v. Tigard, 512 U. S. ___, ___ (1994) (slip
op., at 10-15) (Stevens, J., dissenting). I believe, however, that
the Court's extraordinary decision merits this additional comment.
Guns are both articles of commerce and articles that can be used
to restrain commerce. Their possession is the consequence, either
directly or indirectly, of commercial activity. In my judgment,
Congress' power to regulate commerce in firearms includes the power
to prohibit possession of guns at any location because of their
potentially harmful use; it necessarily follows that Congress may
also prohibit their possession in particular markets. The market
for the possession of handguns by school-age children is,
distressingly, substantial. * Whether or not the national interest
in eliminating that market would have justified federal legislation
in 1789, it surely does today.
FOOTNOTES
* Indeed, there is evidence that firearm manufacturers-aided by a
federal grant-are specifically targeting school children as
consumers by distributing, at schools, hunting-related videos
styled "educational materials for grades four through 12."
Herbert, Reading, Writing, Reloading. N.Y. Times, Dec. 14, 1994,
p.A23. col. 1.
Justice Souter, dissenting.
In reviewing congressional legislation under the Commerce
Clause, we defer to what is often a merely implicit congressional
judgment that its regulation addresses a subject substantially
affecting interstate commerce "if there is any rational basis for
such a finding." Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc., 452 U. S. 264, 276 (1981); Preseault v. ICC, 494 U. S.
1, 17 (1990); see Maryland v. Wirtz, 392 U. S. 183, 190 (1968),
quoting Katzenbach v. McClung, 379 U. S. 294, 303-304 (1964). If
that congressional determination is within the realm of reason,
"the only remaining question for judicial inquiry is whether `the
means chosen by Congress [are] reasonably adapted to the end
permitted by the Constitution.'" Hodel v. Virginia Surface Mining
& Reclamation Assn., Inc., supra, at 276, quoting Heart of Atlanta
Motel, Inc. v. United States, 379 U. S. 241, 262 (1964); see also
Preseault v. ICC, supra, at 17. [footnote 1]
The practice of deferring to rationally based legislative
judgments "is a paradigm of judicial restraint." FCC v. Beach
Communications, Inc., 508 U. S. ___, ___ (1993) (slip op., at 6).
In judicial review under the Commerce Clause, it reflects our
respect for the institutional competence of the Congress on a
subject expressly assigned to it by the Constitution and our
appreciation of the legitimacy that comes from Congress's political
accountability in dealing with matters open to a wide range of
possible choices. See id., at ___ (slip op., at 5-8); Hodel v.
Virginia Surface Mining & Reclamation Assn., Inc., supra, at 276;
United States v. Carolene Products Co., 304 U. S. 144, 147, 151-154
(1938); cf. Williamson v. Lee Optical of Okla., Inc., 348 U. S.
483, 488 (1955).
It was not ever thus, however, as even a brief overview of
Commerce Clause history during the past century reminds us. The
modern respect for the competence and primacy of Congress in
matters affecting commerce developed only after one of this Court's
most chastening experiences, when it perforce repudiated an earlier
and untenably expansive conception of judicial review in derogation
of congressional commerce power. A look at history's sequence will
serve to show how today's decision tugs the Court off course,
leading it to suggest opportunities for further developments that
would be at odds with the rule of restraint to which the Court
still wisely states adherence.
I
Notwithstanding the Court's recognition of a broad commerce
power in Gibbons v. Ogden, 9 Wheat. 1, 196-197 (1824) (Marshall, C.
J.), Congress saw few occasions to exercise that power prior to
Reconstruction, see generally 2 C. Warren, The Supreme Court in
United States History 729-739 (rev. ed. 1935), and it was really
the passage of the Interstate Commerce Act of 1887 that opened a
new age of congressional reliance on the Commerce Clause for
authority to exercise general police powers at the national level,
see id., at 729-730. Although the Court upheld a fair amount of
the ensuing legislation as being within the commerce power, see,
e.g., Stafford v. Wallace, 258 U. S. 495 (1922) (upholding an Act
regulating trade practices in the meat packing industry); The
Shreveport Rate Cases, 234 U. S. 342 (1914) (upholding ICC order to
equalize inter- and intrastate rail rates); see generally Warren,
supra, at 729-739, the period from the turn of the century to 1937
is better noted for a series of cases applying highly formalistic
notions of "commerce" to invalidate federal social and economic
legislation, see, e.g., Carter v. Carter Coal Co., 298 U. S. 238,
303-304 (1936) (striking Act prohibiting unfair labor practices in
coal industry as regulation of "mining" and "production," not
"commerce"); A. L. A. Schechter Poultry Corp. v. United States, 295
U. S. 495, 545-548 (1935) (striking congressional regulation of
activities affecting interstate commerce only "indirectly"); Hammer
v. Dagenhart, 247 U. S. 251 (1918) (striking Act prohibiting
shipment in interstate commerce of goods manufactured at factories
using child labor because the Act regulated "manufactur- ing," not
"commerce"); Adair v. United States, 208 U. S. 161 (1908) (striking
protection of labor union membership as outside "commerce").
These restrictive views of commerce subject to congressional
power complemented the Court's activism in limiting the enforceable
scope of state economic regulation. It is most familiar history
that during this same period the Court routinely invalidated state
social and economic legislation under an expansive conception of
Fourteenth Amendment substantive due process. See, e.g., Louis K.
Liggett Co. v. Baldridge, 278 U. S. 105 (1928) (striking state law
requiring pharmacy owners to be licensed as pharmacists); Coppage
v. Kansas, 236 U. S. 1 (1915) (striking state law prohibiting
employers from requiring their employees to agree not to join labor
organizations); Lochner v. New York, 198 U. S. 45 (1905) (striking
state law establishing maximum working hours for bakers). See
generally L. Tribe, American Constitu- tional Law 568-574 (2d ed.
1988). The fulcrums of judicial review in these cases were the
notions of liberty and property characteristic of laissez-faire
economics, whereas the Commerce Clause cases turned on what was
ostensibly a structural limit of federal power, but under each
conception of judicial review the Court's character for the first
third of the century showed itself in exacting judicial scrutiny of
a legislature's choice of economic ends and of the legislative
means selected to reach them.
It was not merely coincidental, then, that sea changes in the
Court's conceptions of its authority under the Due Process and
Commerce Clauses occurred virtually together, in 1937, with West
Coast Hotel Co. v. Parrish, 300 U. S. 379 and NLRB v. Jones &
Laughlin Steel Corp., 301 U. S. 1. See Stern, The Commerce Clause
and the National Economy, 1933-1946, 59 Harv. L. Rev. 645, 674-682
(1946). In West Coast Hotel, the Court's rejection of a due
process challenge to a state law fixing minimum wages for women and
children marked the abandonment of its expansive protection of
contractual freedom. Two weeks later, Jones & Laughlin affirmed
congressional commerce power to authorize NLRB injunctions against
unfair labor practices. The Court's finding that the regulated
activity had a direct enough effect on commerce has since been seen
as beginning the abandonment, for practical purposes, of the
formalistic distinction between direct and indirect effects.
In the years following these decisions, deference to legislative
policy judgments on commercial regulation became the powerful theme
under both the Due Process and Commerce Clauses, see United States
v. Carolene Products Co., 304 U. S., at 147-148, 152; United States
v. Darby, 312 U. S. 100, 119-121 (1941); United States v.
Wrightwood Dairy Co., 315 U. S. 110, 118-119 (1942), and in due
course that deference became articulate in the standard of
rationality review. In due process litigation, the Court's
statement of a rational basis test came quickly. See United States
v. Carolene Products Co., supra, at 152; see also Williamson v. Lee
Optical Co., 348 U. S., at 489-490. The parallel formulation of
the Commerce Clause test came later, only because complete
elimination of the direct/indirect effects dichotomy and acceptance
of the cumulative effects doctrine, Wickard v. Filburn, 317 U. S.
111, 125, 127-129 (1942); United States v. Wrightwood Dairy Co.,
supra, at 124-126, so far settled the pressing issues of
congressional power over commerce as to leave the Court for years
without any need to phrase a test explicitly deferring to rational
legislative judgments. The moment came, however, with the
challenge to congressional Commerce Clause authority to prohibit
racial discrimination in places of public accommodation, when the
Court simply made explicit what the earlier cases had implied:
"where we find that the legislators, in light of the facts and
testimony before them, have a rational basis for finding a chosen
regulatory scheme necessary to the protection of commerce, our
investigation is at an end." Katzenbach v. McClung, 379 U. S. 294,
303-304 (1964), discussing United States v. Darby, supra; see Heart
of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 258-259
(1964). Thus, under commerce, as under due process, adoption of
rational basis review expressed the recognition that the Court had
no sustainable basis for subjecting economic regulation as such to
judicial policy judgments, and for the past half-century the Court
has no more turned back in the direction of formalistic Commerce
Clause review (as in deciding whether regulation of commerce was
sufficiently direct) than it has inclined toward reasserting the
substantive authority of Lochner due process (as in the inflated
protection of contractual autonomy). See, e.g., Maryland v. Wirtz,
392 U. S., at 190, 198; Perez v. United States, 402 U. S. 146,
151-157 (1971); Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc., 452 U. S., at 276, 277.
II
There is today, however, a backward glance at both the old
pitfalls, as the Court treats deference under the rationality rule
as subject to gradation according to the commercial or
noncommercial nature of the immediate subject of the challenged
regulation. See ante, at 10-13. The distinction between what is
patently commercial and what is not looks much like the old
distinction between what directly affects commerce and what touches
it only indirectly. And the act of calibrating the level of
deference by drawing a line between what is patently commercial and
what is less purely so will probably resemble the process of
deciding how much interference with contractual freedom was fatal.
Thus, it seems fair to ask whether the step taken by the Court
today does anything but portend a return to the untenable jurispru-
dence from which the Court extricated itself almost 60 years ago.
The answer is not reassuring. To be sure, the occasion for today's
decision reflects the century's end, not its beginning. But if it
seems anomalous that the Congress of the United States has taken to
regulating school yards, the act in question is still probably no
more remarkable than state regulation of bake shops 90 years ago.
In any event, there is no reason to hope that the Court's
qualification of rational basis review will be any more successful
than the efforts at substantive economic review made by our
predecessors as the century began. Taking the Court's opinion on
its own terms, Justice Breyer has explained both the hopeless
porosity of "commercial" character as a ground of Commerce Clause
distinction in America's highly connected economy, and the
inconsistency of this categorization with our rational basis
precedents from the last 50 years.
Further glosses on rationality review, moreover, may be in the
offing. Although this case turns on commercial character, the
Court gestures toward two other considerations that it might
sometime entertain in applying rational basis scrutiny (apart from
a statutory obligation to supply independent proof of a
jurisdictional element): does the congressional statute deal with
subjects of traditional state regulation, and does the statute
contain explicit factual findings supporting the otherwise implicit
determination that the regulated activity substantially affects
interstate commerce? Once again, any appeal these considerations
may have depends on ignoring the painful lesson learned in 1937,
for neither of the Court's suggestions would square with rational
basis scrutiny.
A
The Court observes that the Gun-Free School Zones Act operates
in two areas traditionally subject to legislation by the States,
education and enforcement of criminal law. The suggestion is
either that a connection between commerce and these subjects is
remote, or that the commerce power is simply weaker when it touches
subjects on which the States have historically been the primary
legislators. Neither suggestion is tenable. As for remoteness, it
may or may not be wise for the National Government to deal with
education, but Justice Breyer has surely demonstrated that the
commercial prospects of an illiterate State or Nation are not rosy,
and no argument should be needed to show that hijacking interstate
shipments of cigarettes can affect commerce substantially, even
though the States have traditionally prosecuted robbery. And as
for the notion that the commerce power diminishes the closer it
gets to customary state concerns, that idea has been flatly
rejected, and not long ago. The commerce power, we have often
observed, is plenary. Hodel v. Virginia Surface Mining &
Reclamation Assn., Inc., 312 U. S., at 276; United States v. Darby,
supra, at 114; see Garcia v. San Antonio Metropolitan Transit
Authority, 469 U. S. 528, 549-550 (1985); Gibbons v. Ogden, 9
Wheat., at 196-197. Justice Harlan put it this way in speaking for
the Court in Maryland v. Wirtz:
"There is no general doctrine implied in the Federal
Constitution that the two governments, national and state, are
each to exercise its powers so as not to interfere with the
free and full exercise of the powers of the other. . . . [I]t
is clear that the Federal Government, when acting within a
delegated power, may override countervailing state interests
. . . . As long ago as [1925], the Court put to rest the
contention that state concerns might constitutionally
`outweigh' the importance of an otherwise valid federal
statute regulating commerce." 392 U. S., at 195-196
(citations and internal quotation marks omitted).
See also United States v. Darby, supra, at 114; Gregory v.
Ashcroft, 501 U. S. 452, 460 (1991); United States v. Carolene
Products Co., 304 U. S., at 147.
Nor is there any contrary authority in the reasoning of our
cases imposing clear statement rules in some instances of
legislation that would significantly alter the state-national
balance. In the absence of a clear statement of congressional
design, for example, we have refused to interpret ambiguous federal
statutes to limit fundamental state legislative prerogatives,
Gregory v. Ashcroft, supra, at 460-464, our understanding being
that such prerogatives, through which "a State defines itself as a
sovereign," are "powers with which Congress does not readily
interfere," 501 U. S., at 460, 461. Like- wise, when faced with
two plausible interpretations of a federal criminal statute, we
generally will take the alternative that does not force us to
impute an intention to Congress to use its full commerce power to
regulate conduct traditionally and ably regulated by the States.
See United States v. Enmons, 410 U. S. 396, 411-412 (1973); United
States v. Bass, 404 U. S. 336, 349-350 (1971); Rewis v. United
States, 401 U. S. 808, 812 (1971).
These clear statement rules, however, are merely rules of
statutory interpretation, to be relied upon only when the terms of
a statute allow, United States v. Culbert, 435 U. S. 371, 379-380
(1978); see Gregory v. Ashcroft, supra, at 470; United States v.
Bass, supra, at 346-347, and in cases implicating Congress's
historical reluctance to trench on state legislative prerogatives
or to enter into spheres already occupied by the States, Gregory v.
Ashcroft, supra, at 461; United States v. Bass, supra, at 349; see
Rewis v. United States, supra, at 811-812. They are rules for
determining intent when legislation leaves intent subject to
question. But our hesitance to presume that Congress has acted to
alter the state- federal status quo (when presented with a
plausible alternative) has no relevance whatever to the enquiry
whether it has the commerce power to do so or to the standard of
judicial review when Congress has definitely meant to exercise that
power. Indeed, to allow our hesitance to affect the standard of
review would inevitably degenerate into the sort of substantive
policy review that the Court found indefensible 60 years ago. The
Court does not assert (and could not plausibly maintain) that the
commerce power is wholly devoid of congressional authority to speak
on any subject of traditional state concern; but if congressional
action is not forbidden absolutely when it touches such a subject,
it will stand or fall depending on the Court's view of the strength
of the legislation's commercial justification. And here once again
history raises its objections that the Court's previous essays in
overriding congressional policy choices under the Commerce Clause
were ultimately seen to suffer two fatal weaknesses: when dealing
with Acts of Congress (as distinct from state legislation subject
to review under the theory of dormant commerce power) nothing in
the Clause compelled the judicial activism, and nothing about the
judiciary as an institution made it a superior source of policy on
the subject Congress dealt with. There is no reason to expect the
lesson would be different another time.
B
There remain questions about legislative findings. The Court
of Appeals expressed the view, 2 F. 3d 1342, 1363-1368 (1993), that
the result in this case might well have been different if Congress
had made explicit findings that guns in schools have a substantial
effect on interstate commerce, and the Court today does not
repudiate that position, see ante, at 13-14. Might a court aided
by such findings have subjected this legislation to less exacting
scrutiny (or, put another way, should a court have deferred to such
findings if Congress had made them)? [footnote 2] The answer to
either question must be no, although as a general matter findings
are important and to be hoped for in the difficult cases.
It is only natural to look for help with a hard job, and
reviewing a claim that Congress has exceeded the commerce power is
much harder in some cases than in others. A challenge to
congressional regulation of interstate garbage hauling would be
easy to resolve; review of congressional regulation of gun
possession in school yards is more difficult, both because the link
to interstate commerce is less obvious and because of our initial
ignorance of the relevant facts. In a case comparable to this one,
we may have to dig hard to make a responsible judgment about what
Congress could reasonably find, because the case may be close, and
because judges tend not to be familiar with the facts that may or
may not make it close. But while the ease of review may vary from
case to case, it does not follow that the standard of review should
vary, much less that explicit findings of fact would even directly
address the standard.
The question for the courts, as all agree, is not whether as a
predicate to legislation Congress in fact found that a particular
activity substantially affects interstate commerce. The
legislation implies such a finding, and there is no reason to
entertain claims that Congress acted ultra vires intentionally.
Nor is the question whether Congress was correct in so finding.
The only question is whether the legislative judgment is within the
realm of reason. See Hodel v. Virginia Surface Mining &
Reclamation Assn., Inc., 452 U. S., at 276-277; Katzenbach v.
McClung, 379 U. S., at 303-304; Railroad Retirement Bd. v. Alton R.
Co., 295 U. S. 330, 391-392 (1935) (Hughes, C. J., dissenting); cf.
FCC v. Beach Communications, 508 U. S., at ___ (slip op., at 7) (in
the equal protection context, "those attacking the rationality of
the legislative classification have the burden to negative every
conceivable basis which might support it; . . . it is entirely
irrelevant for constitutional purposes whether the conceived reason
for the challenged distinction actually motivated the legislature")
(citations and internal quotation marks omitted); Ferguson v.
Skrupa, 372 U. S. 726, 731-733 (1963); Williamson v. Lee Optical
Co., 348 U. S., at 487. Congressional findings do not, however,
directly address the question of reasonableness; they tell us what
Congress actually has found, not what it could rationally find.
If, indeed, the Court were to make the existence of explicit
congressional findings dispositive in some close or difficult cases
something other than rationality review would be afoot. The
resulting congressional obligation to justify its policy choices on
the merits would imply either a judicial authority to review the
justification (and, hence, the wisdom) of those choices, or
authority to require Congress to act with some high degree of
deliberateness, of which express findings would be evidence. But
review for congressional wisdom would just be the old judicial
pretension discredited and abandoned in 1937, and review for
deliberateness would be as patently unconstitutional as an Act of
Congress mandating long opinions from this Court. Such a
legislative process requirement would function merely as an excuse
for covert review of the merits of legislation under standards
never expressed and more or less arbitrarily applied. Under such
a regime, in any case, the rationality standard of review would be
a thing of the past.
On the other hand, to say that courts applying the rationality
standard may not defer to findings is not, of course, to say that
findings are pointless. They may, in fact, have great value in
telling courts what to look for, in establishing at least one frame
of reference for review, and in citing to factual authority. The
research underlying Justice Breyer's dissent was necessarily a
major undertaking; help is welcome, and it not incidentally shrinks
the risk that judicial research will miss material scattered across
the public domain or buried under pounds of legislative record.
Congressional findings on a more particular plane than this record
illustrates would accordingly have earned judicial thanks. But
thanks do not carry the day as long as rational possibility is the
touchstone, and I would not allow for the possibility, as the
Court's opinion may, ante, at 14, that the addition of
congressional findings could in principle have affected the fate of
the statute here.
III
Because Justice Breyer's opinion demonstrates beyond any doubt
that the Act in question passes the rationality review that the
Court continues to espouse, today's decision may be seen as only a
misstep, its reasoning and its suggestions not quite in gear with
the prevailing standard, but hardly an epochal case. I would not
argue otherwise, but I would raise a caveat. Not every epochal
case has come in epochal trappings. Jones & Laughlin did not
reject the direct-indirect standard in so many words; it just said
the relation of the regulated subject matter to commerce was direct
enough. 301 U. S., at 41-43. But we know what happened.
I respectfully dissent.
FOOTNOTES
1. In this case no question has been raised about means and ends;
the only issue is about the effect of school zone guns on commerce.
2. Unlike the Court, (perhaps), I would see no reason not to
consider Congress's findings, insofar as they might be helpful in
reviewing the challenge to this statute, even though adopted in
later legislation. See the Violent Crime Control and Law
Enforcement Act of 1994, Pub.L. 103-322, section 32094, 108 Stat.
2125 ("[T]he occurrence of violent crime in school zones has
resulted in a decline in the quality of education in our country;
. . . this decline . . . has an adverse impact on interstate
commerce and the foreign commerce of the United States; . . .
Congress has power, under the interstate commerce clause and other
provisions of the Constitution, to enact measures to insure the
integrity and safety of the Nation's schools by enactment of this
subsection"). The findings, however, go no further than expressing
what is obviously implicit in the substantive legislation, at such
a conclusory level of generality as to add virtually nothing to the
record. The Solicitor General certainly exercised sound judgment
in placing no significant reliance on these particular
afterthoughts. Tr. of Oral Arg. 24-25.
Justice Breyer, with whom Justice Stevens, Justice Souter, and
Justice Ginsburg join, dissenting.
The issue in this case is whether the Commerce Clause authorizes
Congress to enact a statute that makes it a crime to possess a gun
in, or near, a school. 18 U. S. C. section 922(q)(1)(A) (1988 ed.,
Supp. V). In my view, the statute falls well within the scope of
the commerce power as this Court has understood that power over the
last half-century.
I
In reaching this conclusion, I apply three basic principles of
Commerce Clause interpretation. First, the power to "regulate
Commerce . . . among the several States," U. S. Const., Art. I, 8,
cl. 3, encompasses the power to regulate local activities insofar
as they significantly affect interstate commerce. See, e.g.,
Gibbons v. Ogden, 9 Wheat. 1, 194-195 (1824) (Marshall, C. J.);
Wickard v. Filburn, 317 U. S. 111, 125 (1942). As the majority
points out, ante, at 10, the Court, in describing how much of an
effect the Clause requires, sometimes has used the word
"substantial" and sometimes has not. Compare, e.g., Wickard,
supra, at 125 ("substantial economic effect"), with Hodel v.
Virginia Surface Mining and Reclamation Assn., Inc., 452 U. S. 264,
276 (1981) ("affects interstate commerce"); see also Maryland v.
Wirtz, 392 U. S. 183, 196, n. 27 (1968) (cumulative effect must not
be "trivial"); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1,
37 (1937) (speaking of "close and substantial relation" between
activity and commerce, not of "substantial effect") (emphasis
added); Gibbons, supra, at 194 (words of Commerce Clause do not
"comprehend . . . commerce, which is completely internal . . . and
which does not . . . affect other States"). And, as the majority
also recognizes in quoting Justice Cardozo, the question of degree
(how much effect) requires an estimate of the "size" of the effect
that no verbal formulation can capture with precision. See ante,
at 18. I use the word "significant" because the word "substan-
tial" implies a somewhat narrower power than recent precedent
suggests. See, e.g., Perez v. United States, 402 U. S. 146, 154
(1971); Daniel v. Paul, 395 U. S. 298, 308 (1969). But, to speak
of "substantial effect" rather than "significant effect" would make
no difference in this case.
Second, in determining whether a local activity will likely have
a significant effect upon interstate commerce, a court must
consider, not the effect of an individual act (a single instance of
gun possession), but rather the cumulative effect of all similar
instances (i.e., the effect of all guns possessed in or near
schools). See, e.g., Wickard, supra, at 127-128. As this Court
put the matter almost 50 years ago:
"[I]t is enough that the individual activity when multiplied
into a general practice . . . contains a threat to the
interstate economy that requires preventative regulation."
Mandeville Island Farms, Inc. v. American Crystal Sugar Co.,
334 U. S. 219, 236 (1948) (citations omitted).
Third, the Constitution requires us to judge the connection
between a regulated activity and interstate commerce, not directly,
but at one remove. Courts must give Congress a degree of leeway in
determining the existence of a significant factual connection
between the regulated activity and interstate commerce-both because
the Constitution delegates the commerce power directly to Congress
and because the determination requires an empirical judgment of a
kind that a legislature is more likely than a court to make with
accuracy. The traditional words "rational basis" capture this
leeway. See Hodel, supra, at 276-277. Thus, the specific question
before us, as the Court recognizes, is not whether the "regulated
activity sufficiently affected interstate commerce," but, rather,
whether Congress could have had "a rational basis" for so
concluding. Ante, at 8 (emphasis added).
I recognize that we must judge this matter independently.
"[S]imply because Congress may conclude that a particular activity
substantially affects interstate commerce does not necessarily make
it so." Hodel, supra, at 311 (Rehnquist, J., concurring in
judgment). And, I also recognize that Congress did not write
specific "interstate commerce" findings into the law under which
Lopez was convicted. Nonetheless, as I have already noted, the
matter that we review independently (i.e., whether there is a
"rational basis") already has considerable leeway built into it.
And, the absence of findings, at most, deprives a statute of the
benefit of some extra leeway. This extra deference, in principle,
might change the result in a close case, though, in practice, it
has not made a critical legal difference. See, e.g., Katzenbach v.
McClung, 379 U. S. 294, 299 (1964) (noting that "no formal findings
were made, which of course are not necessary"); Perez, supra, at
156-157; cf. Turner Broadcasting System, Inc. v. FCC, 512 U. S.
___, ___ (1994) (opinion of Kennedy, J.) (slip op., at 42)
("Congress is not obligated, when enacting its statutes, to make a
record of the type that an administrative agency or court does to
accommodate judicial review"); Fullilove v. Klutznick, 448 U. S.
448, 503 (1980) (Powell, J., concurring) ("After Congress has
legislated repeatedly in an area of national concern, its Members
gain experience that may reduce the need for fresh hearings or pro-
longed debate . . ."). And, it would seem particularly unfortunate
to make the validity of the statute at hand turn on the presence or
absence of findings. Because Congress did make findings (though
not until after Lopez was prosecuted), doing so would appear to
elevate form over substance. See Pub. L. 103-322, sections
320904(2)(F), (G), 108 Stat. 2125, 18 U. S. C. A. section
922(q)(1)(F), (G) (Nov. 1994 Supp.).
In addition, despite the Court of Appeals' suggestion to the
contrary, see 2 F. 3d 1342, 1365 (CA5 1993), there is no special
need here for a clear indication of Congress' rationale. The
statute does not interfere with the exercise of state or local
authority. Cf., e.g., Dellmuth v. Muth, 491 U. S. 223, 227-228
(1989) (requiring clear statement for abrogation of Eleventh
Amendment immunity). Moreover, any clear statement rule would
apply only to determine Congress' intended result, not to clarify
the source of its authority or measure the level of consideration
that went into its decision, and here there is no doubt as to which
activities Congress intended to regulate. See ibid.; id., at 233
(Scalia, J., concurring) (to subject States to suits for money
damages, Congress need only make that intent clear, and need not
refer explicitly to the Eleventh Amendment); EEOC v. Wyoming, 460
U. S. 226, 243, n. 18 (1983) (Congress need not recite the
constitutional provision that authorizes its action).
II
Applying these principles to the case at hand, we must ask
whether Congress could have had a rational basis for finding a
significant (or substantial) connection between gun-related school
violence and interstate commerce. Or, to put the question in the
language of the explicit finding that Congress made when it amended
this law in 1994: Could Congress rationally have found that
"violent crime in school zones," through its effect on the "quality
of education," significantly (or substantially) affects
"interstate" or "foreign commerce"? 18 U. S. C. A. sections
922(q)(1)(F), (G) (Nov. 1994 Supp.). As long as one views the
commerce connection, not as a "technical legal conception," but as
"a practical one," Swift & Co. v. United States, 196 U. S. 375, 398
(1905) (Holmes, J.), the answer to this question must be yes.
Numerous reports and studies-generated both inside and outside
government-make clear that Congress could reasonably have found the
empirical connection that its law, implicitly or explicitly,
asserts. (See Appendix, infra at 19, for a sample of the
documentation, as well as for complete citations to the sources
referenced below.)
For one thing, reports, hearings, and other readily available
literature make clear that the problem of guns in and around
schools is widespread and extremely serious. These materials
report, for example, that four percent of American high school
students (and six percent of inner-city high school students) carry
a gun to school at least occasionally, Centers for Disease Control
2342; Sheley, McGee, & Wright 679; that 12 percent of urban high
school students have had guns fired at them, ibid.; that 20 percent
of those students have been threatened with guns, ibid.; and that,
in any 6-month period, several hundred thousand schoolchildren are
victims of violent crimes in or near their schools, U. S. Dept. of
Justice 1 (1989); House Select Committee Hearing 15 (1989). And,
they report that this wide-spread violence in schools throughout
the Nation significantly interferes with the quality of education
in those schools. See, e.g., House Judiciary Committee Hearing 44
(1990) (linking school violence to dropout rate); U. S. Dept. of
Health 118-119 (1978) (school-violence victims suffer
academically); compare U. S. Dept. of Justice 1 (1991) (gun
violence worst in inner city schools), with National Center 47
(dropout rates highest in inner cities). Based on reports such as
these, Congress obviously could have thought that guns and learning
are mutually exclusive. Senate Labor and Human Resources Committee
Hearing 39 (1993); U. S. Dept. of Health 118, 123-124 (1978). And,
Congress could therefore have found a substantial educational
problem-teachers unable to teach, students unable to learn-and
concluded that guns near schools contribute substantially to the
size and scope of that problem.
Having found that guns in schools significantly undermine the
quality of education in our Nation's classrooms, Congress could
also have found, given the effect of education upon interstate and
foreign commerce, that gun-related violence in and around schools
is a commercial, as well as a human, problem. Education, although
far more than a matter of economics, has long been inextricably
intertwined with the Nation's economy. When this Nation began,
most workers received their education in the workplace, typically
(like Benjamin Franklin) as apprentices. See generally Seybolt;
Rorabaugh; U. S. Dept. of Labor (1950). As late as the 1920's,
many workers still received general education directly from their
employers-from large corporations, such as General Electric, Ford,
and Goodyear, which created schools within their firms to help both
the worker and the firm. See Bolino 15-25. (Throughout most of
the 19th century fewer than one percent of all Americans received
secondary education through attending a high school. See id., at
11.) As public school enrollment grew in the early 20th century,
see Becker 218 (1993), the need for industry to teach basic educa-
tional skills diminished. But, the direct economic link between
basic education and industrial productivity remained. Scholars
estimate that nearly a quarter of America's economic growth in the
early years of this century is traceable directly to increased
schooling, see Denison 243; that investment in "human capital"
(through spending on education) exceeded investment in "physical
capital" by a ratio of almost two to one, see Schultz 26 (1961);
and that the economic returns to this investment in education
exceeded the returns to conventional capital investment, see, e.g.,
Davis & Morrall 48-49.
In recent years the link between secondary education and
business has strengthened, becoming both more direct and more
important. Scholars on the subject report that technological
changes and innovations in management techniques have altered the
nature of the workplace so that more jobs now demand greater
educational skills. See, e.g., MIT 32 (only about one- third of
hand-tool company's 1,000 workers were qualified to work with a new
process that requires high-school-level reading and mathematical
skills); Cyert & Mowery 68 (gap between wages of high school
dropouts and better trained workers increasing); U. S. Dept. of
Labor 41 (1981) (job openings for dropouts declining over time).
There is evidence that "service, manufacturing or construction jobs
are being displaced by technology that requires a better-educated
worker or, more likely, are being exported overseas," Gordon,
Ponticell, & Morgan 26; that "workers with truly few skills by the
year 2000 will find that only one job out of ten will remain,"
ibid.; and that
"[o]ver the long haul the best way to encourage the growth of
high-wage jobs is to upgrade the skills of the work force. .
. . [B]etter-trained workers become more productive workers,
enabling a company to become more competitive and expand."
Henkoff 60.
Increasing global competition also has made primary and
secondary education economically more important. The portion of
the American economy attributable to international trade nearly
tripled between 1950 and 1980, and more than 70 percent of
American-made goods now compete with imports. Marshall 205;
Marshall & Tucker 33. Yet, lagging worker productivity has
contributed to negative trade balances and to real hourly
compensation that has fallen below wages in 10 other industrialized
nations. See National Center 57; Handbook of Labor Statistics 561,
576 (1989); Neef & Kask 28, 31. At least some significant part of
this serious productivity problem is attributable to students who
emerge from classrooms without the reading or mathematical skills
necessary to compete with their European or Asian counterparts,
see, e.g., MIT 28, and, presumably, to high school dropout rates of
20 to 25 percent (up to 50 percent in inner cities), see, e.g.,
National Center 47; Chubb & Hanushek 215. Indeed, Congress has
said, when writing other statutes, that "functionally or
technologically illiterate" Americans in the work force "erod[e]"
our economic "standing in the international marketplace," Pub. L.
100-418, section 6002(a)(3), 102 Stat. 1469, and that "our Nation
is . . . paying the price of scientific and technological
illiteracy, with our productivity declining, our industrial base
ailing, and our global competitiveness dwindling." H. R. Rep. No.
98-6, pt. 1, p. 19 (1983).
Finally, there is evidence that, today more than ever, many
firms base their location decisions upon the presence, or absence,
of a work force with a basic education. See MacCormack, Newman, &
Rosenfield 73; Coffee 296. Scholars on the subject report, for
example, that today, "[h]igh speed communication and transporta-
tion make it possible to produce most products and services
anywhere in the world," National Center 38; that "[m]odern
machinery and production methods can therefore be combined with low
wage workers to drive costs down," ibid.; that managers can perform
"`back office functions anywhere in the world now,'" and say that
if they "`can't get enough skilled workers here'" they will "`move
the skilled jobs out of the country,'" id., at 41; with the
consequence that "rich countries need better education and
retraining, to reduce the supply of unskilled workers and to equip
them with the skills they require for tomorrow's jobs," Survey of
Global Economy 37. In light of this increased importance of
education to individual firms, it is no surprise that half of the
Nation's manufacturers have become involved with setting standards
and shaping curricula for local schools, Maturi 65-68, that 88
percent think this kind of involvement is important, id., at 68,
that more than 20 States have recently passed educational reforms
to attract new business, Overman 61-62, and that business magazines
have begun to rank cities according to the quality of their
schools, see Boyle 24.
The economic links I have just sketched seem fairly obvious.
Why then is it not equally obvious, in light of those links, that
a widespread, serious, and substantial physical threat to teaching
and learning also substantially threatens the commerce to which
that teaching and learning is inextricably tied? That is to say,
guns in the hands of six percent of inner-city high school students
and gun-related violence throughout a city's schools must threaten
the trade and commerce that those schools support. The only
question, then, is whether the latter threat is (to use the
majority's terminology) "substantial." And, the evidence of (1)
the extent of the gun-related violence problem, see supra, at 5,
(2) the extent of the resulting negative effect on classroom
learning, see supra, at 5-6, and (3) the extent of the consequent
negative commercial effects, see supra, at 6-9, when taken
together, indicate a threat to trade and commerce that is
"substantial." At the very least, Congress could rationally have
concluded that the links are "substantial."
Specifically, Congress could have found that gun- related
violence near the classroom poses a serious economic threat (1) to
consequently inadequately educated workers who must endure low
paying jobs, see, e.g., National Center 29, and (2) to communities
and businesses that might (in today's "information society")
otherwise gain, from a well-educated work force, an important
commercial advantage, see, e.g., Becker 10 (1992), of a kind that
location near a railhead or harbor provided in the past. Congress
might also have found these threats to be no different in kind from
other threats that this Court has found within the commerce power,
such as the threat that loan sharking poses to the "funds" of
"numerous localities," Perez v. United States, 402 U. S., at 157,
and that unfair labor practices pose to instrumentalities of
commerce, see Consolidated Edison Co. v. NLRB, 305 U. S. 197,
221-222 (1938). As I have pointed out, supra, at 4, Congress has
written that "the occurrence of violent crime in school zones" has
brought about a "decline in the quality of education" that "has an
adverse impact on interstate commerce and the foreign commerce of
the United States." 18 U. S. C. A. sections 922(q)(1)(F), (G)
(Nov. 1994 Supp.). The violence-related facts, the educational
facts, and the economic facts, taken together, make this conclusion
rational. And, because under our case law, see supra, at 1-2;
infra, at 15, the sufficiency of the constitutionally necessary
Commerce Clause link between a crime of violence and interstate
commerce turns simply upon size or degree, those same facts make
the statute constitutional.
To hold this statute constitutional is not to "obliterate" the
"distinction of what is national and what is local," ante, at 18
(citation omitted; internal quotation marks omitted); nor is it to
hold that the Commerce Clause permits the Federal Government to
"regulate any activity that it found was related to the economic
productivity of individual citizens," to regulate "marriage,
divorce, and child custody," or to regulate any and all aspects of
education. Ante, at 15-16. For one thing, this statute is aimed
at curbing a particularly acute threat to the educational
process-the possession (and use) of life-threatening firearms in,
or near, the class- room. The empirical evidence that I have
discussed above unmistakably documents the special way in which
guns and education are incompatible. See supra, at 5-6. This
Court has previously recognized the singularly disruptive potential
on interstate commerce that acts of violence may have. See Perez,
supra, at 156-157. For another thing, the immediacy of the
connection between education and the national economic well-being
is documented by scholars and accepted by society at large in a way
and to a degree that may not hold true for other social
institutions. It must surely be the rare case, then, that a
statute strikes at conduct that (when considered in the abstract)
seems so removed from commerce, but which (practically speaking)
has so significant an impact upon commerce.
In sum, a holding that the particular statute before us falls
within the commerce power would not expand the scope of that
Clause. Rather, it simply would apply pre-existing law to changing
economic circumstances. See Heart of Atlanta Motel, Inc. v. United
States, 379 U. S. 241, 251 (1964). It would recognize that, in
today's economic world, gun-related violence near the classroom
makes a significant difference to our economic, as well as our
social, well-being. In accordance with well- accepted precedent,
such a holding would permit Congress "to act in terms of economic
. . . realities," would interpret the commerce power as "an
affirmative power commensurate with the national needs," and would
acknowledge that the "commerce clause does not operate so as to
render the nation powerless to defend itself against economic
forces that Congress decrees inimical or destructive of the
national economy." North American Co. v. SEC, 327 U. S. 686, 705
(1946) (citing Swift & Co. v. United States, 196 U. S., at 398
(Holmes, J.)).
III
The majority's holding-that section 922 falls outside the scope
of the Commerce Clause-creates three serious legal problems.
First, the majority's holding runs contrary to modern Supreme Court
cases that have upheld congressional actions despite connections to
interstate or foreign commerce that are less significant than the
effect of school violence. In Perez v. United States, supra, the
Court held that the Commerce Clause authorized a federal statute
that makes it a crime to engage in loan sharking ("[e]xtortionate
credit transac- tions") at a local level. The Court said that
Congress may judge that such transactions, "though purely
intrastate, . . . affect interstate commerce." 402 U. S., at 154
(emphasis added). Presumably, Congress reasoned that threatening
or using force, say with a gun on a street corner, to collect a
debt occurs sufficiently often so that the activity (by helping
organized crime) affects commerce among the States. But, why then
cannot Congress also reason that the threat or use of force-the
frequent consequence of possessing a gun-in or near a school occurs
sufficiently often so that such activity (by inhibiting basic
education) affects commerce among the States? The negative impact
upon the national economy of an inability to teach basic skills
seems no smaller (nor less significant) than that of organized
crime.
In Katzenbach v. McClung, 379 U. S. 294 (1964), this Court
upheld, as within the commerce power, a statute prohibiting racial
discrimination at local restaurants, in part because that
discrimination discouraged travel by African Americans and in part
because that discrimination affected purchases of food and
restaurant supplies from other States. See id., at 300; Heart of
Atlanta Motel, supra, at 274 (Black, J., concurring in McClung and
in Heart of Atlanta). In Daniel v. Paul, 395 U. S. 298 (1969),
this Court found an effect on commerce caused by an amusement park
located several miles down a country road in the middle of
Alabama-because some customers (the Court assumed), some food, 15
paddleboats, and a juke box had come from out of State. See id.,
at 304-305, 308. In both of these cases, the Court understood that
the specific instance of discrimination (at a local place of
accommodation) was part of a general practice that, considered as
a whole, caused not only the most serious human and social harm,
but had nationally significant economic dimensions as well. See
McClung, supra, at 301; Daniel, supra, at 307, n. 10. It is
difficult to distinguish the case before us, for the same critical
elements are present. Businesses are less likely to locate in
communities where violence plagues the classroom. Families will
hesitate to move to neighborhoods where students carry guns instead
of books. (Congress expressly found in 1994 that "parents may
decline to send their children to school" in certain areas "due to
concern about violent crime and gun violence." 18 U. S. C. A.
section 922(q)(1)(E) (Nov. 1994 Supp.)). And (to look at the
matter in the most narrowly commercial manner), interstate
publishers therefore will sell fewer books and other firms will
sell fewer school supplies where the threat of violence disrupts
learning. Most importantly, like the local racial discrimination
at issue in McClung and Daniel, the local instances here, taken
together and considered as a whole, create a problem that causes
serious human and social harm, but also has nationally significant
economic dimensions.
In Wickard v. Filburn, 317 U. S. 111 (1942), this Court
sustained the application of the Agricultural Adjustment Act of
1938 to wheat that Filburn grew and consumed on his own local farm
because, considered in its totality, (1) home-grown wheat may be
"induced by rising prices" to "flow into the market and check price
increases," and (2) even if it never actually enters the market,
home-grown wheat nonetheless "supplies a need of the man who grew
it which would otherwise be reflected by purchases in the open
market" and, in that sense, "competes with wheat in commerce."
Id., at 128. To find both of these effects on commerce significant
in amount, the Court had to give Congress the benefit of the doubt.
Why would the Court, to find a significant (or "substantial")
effect here, have to give Congress any greater leeway? See also
United States v. Women's Sportswear Manufacturers Assn., 336 U. S.
460, 464 (1949) ("If it is interstate commerce that feels the
pinch, it does not matter how local the operation which applies the
squeeze"); Mandeville Island Farms, Inc. v. American Crystal Sugar
Co., 334 U. S., at 236 ("[I]t is enough that the individual
activity when multiplied into a general practice . . . contains a
threat to the interstate economy that requires preventative
regulation").
The second legal problem the Court creates comes from its
apparent belief that it can reconcile its holding with earlier
cases by making a critical distinction between "commercial" and
noncommercial "transac- tion[s]." Ante, at 12-13. That is to say,
the Court believes the Constitution would distinguish between two
local activities, each of which has an identical effect upon
interstate commerce, if one, but not the other, is "commercial" in
nature. As a general matter, this approach fails to heed this
Court's earlier warning not to turn "questions of the power of
Congress" upon "formula[s]" that would give "controlling force to
nomenclature such as `production' and `indirect' and foreclose
consideration of the actual effects of the activity in question
upon interstate commerce." Wickard, supra, at 120. See also United
States v. Darby, 312 U. S. 100, 116-117 (1941) (overturning the
Court's distinction between "production" and "commerce" in the
child labor case, Hammer v. Dagenhart, 247 U. S. 251, 271-272
(1918)); Swift & Co. v. United States, 196 U. S., at 398 (Holmes,
J.) ("[C]ommerce among the States is not a technical legal
conception, but a practical one, drawn from the course of
business"). Moreover, the majority's test is not consistent with
what the Court saw as the point of the cases that the majority now
characterizes. Although the majority today attempts to categorize
Perez, McClung, and Wickard as involving intrastate "economic
activity," ante, at 10-11, the Courts that decided each of those
cases did not focus upon the economic nature of the activity
regulated. Rather, they focused upon whether that activity
affected interstate or foreign commerce. In fact, the Wickard
Court expressly held that Wickard's consumption of home grown
wheat, "though it may not be regarded as commerce," could
nevertheless be regulated-"whatever its nature"-so long as "it
exerts a substantial economic effect on interstate commerce."
Wickard, supra, at 125 (emphasis added).
More importantly, if a distinction between commercial and
noncommercial activities is to be made, this is not the case in
which to make it. The majority clearly cannot intend such a
distinction to focus narrowly on an act of gun possession standing
by itself, for such a reading could not be reconciled with either
the civil rights cases (McClung and Daniel) or Perez-in each of
those cases the specific transaction (the race-based exclusion, the
use of force) was not itself "commercial." And, if the majority
instead means to distinguish generally among broad categories of
activities, differentiating what is educational from what is
commercial, then, as a practical matter, the line becomes almost
impossible to draw. Schools that teach reading, writing, mathemat-
ics, and related basic skills serve both social and commercial
purposes, and one cannot easily separate the one from the other.
American industry itself has been, and is again, involved in
teaching. See supra, at 6, 9. When, and to what extent, does its
involvement make education commercial? Does the number of
vocational classes that train students directly for jobs make a
difference? Does it matter if the school is public or private,
nonprofit or profit-seeking? Does it matter if a city or State
adopts a voucher plan that pays private firms to run a school?
Even if one were to ignore these practical questions, why should
there be a theoretical distinction between education, when it
significantly benefits commerce, and environmental pollution, when
it causes economic harm? See Hodel v. Virginia Surface Mining &
Reclamation Assn., Inc., 452 U. S. 264 (1981).
Regardless, if there is a principled distinction that could work
both here and in future cases, Congress (even in the absence of
vocational classes, industry involvement, and private management)
could rationally conclude that schools fall on the commercial side
of the line. In 1990, the year Congress enacted the statute before
us, primary and secondary schools spent $230 billion-that is,
nearly a quarter of a trillion dollars-which accounts for a
significant portion of our $5.5 trillion Gross Domestic Product for
that year. See Statistical Abstract 147, 442 (1993). The business
of schooling requires expenditure of these funds on student
transportation, food and custodial services, books, and teachers'
salaries. See U. S. Dept. of Education 4, 7 (1993). And, these
expenditures enable schools to provide a valuable service-namely,
to equip students with the skills they need to survive in life and,
more specifically, in the workplace. Certainly, Congress has often
analyzed school expenditure as if it were a commercial investment,
closely analyzing whether schools are efficient, whether they
justify the significant resources they spend, and whether they can
be restructured to achieve greater returns. See, e.g., S. Rep. No.
100-222, p. 2 (1987) (federal school assistance is "a prudent
investment"); Senate Appropriations Committee Hearing (1994)
(private sector management of public schools); cf. Chubb & Moe
185-229 (school choice); Hanushek 85-122 (performance based
incentives for educators); Gibbs (decision in Hartford, Conn., to
contract out public school system). Why could Congress, for
Commerce Clause purposes, not consider schools as roughly analogous
to commercial investments from which the Nation derives the benefit
of an educated work force?
The third legal problem created by the Court's holding is that
it threatens legal uncertainty in an area of law that, until this
case, seemed reasonably well settled. Congress has enacted many
statutes (more than 100 sections of the United States Code),
including criminal statutes (at least 25 sections), that use the
words "affecting commerce" to define their scope, see, e.g., 18 U.
S. C. section 844(i) (destruction of buildings used in activity
affecting interstate commerce), and other statutes that contain no
jurisdictional language at all, see, e.g., 18 U. S. C. section
922(o)(1) (possession of machine guns). Do these, or similar,
statutes regulate noncommercial activities? If so, would that
alter the meaning of "affecting commerce" in a jurisdictional
element? Cf. United States v. Staszcuk, 517 F. 2d 53, 57-58 (CA7
1975) (en banc) (Stevens, J.) (evaluation of Congress' intent
"requires more than a consideration of the consequences of the
particular transaction"). More importantly, in the absence of a
jurisdictional element, are the courts nevertheless to take
Wickard, 317 U. S., at 127-128, (and later similar cases) as
inapplicable, and to judge the effect of a single noncommercial
activity on interstate commerce without considering similar in-
stances of the forbidden conduct? However these questions are
eventually resolved, the legal uncertainty now created will
restrict Congress' ability to enact criminal laws aimed at criminal
behavior that, considered problem by problem rather than instance
by instance, seriously threatens the economic, as well as social,
well-being of Americans.
IV
In sum, to find this legislation within the scope of the
Commerce Clause would permit "Congress . . . to act in terms of
economic . . . realities." North American Co. v. SEC, 327 U. S.,
at 705 (citing Swift & Co. v. United States, 196 U. S., at 398
(Holmes, J.)). It would interpret the Clause as this Court has
traditionally interpreted it, with the exception of one wrong turn
subsequently corrected. See Gibbons v. Ogden, 9 Wheat., at 195
(holding that the commerce power extends "to all the external
concerns of the nation, and to those internal concerns which affect
the States generally"); United States v. Darby, 312 U. S., at
116-117 ("The conclusion is inescapable that Hammer v. Dagenhart
[the child labor case], was a departure from the principles which
have prevailed in the interpretation of the Commerce Clause both
before and since the decision . . . . It should be and now is
overruled"). Upholding this legislation would do no more than
simply recognize that Congress had a "rational basis" for finding
a significant connection between guns in or near schools and
(through their effect on education) the interstate and foreign
commerce they threaten. For these reasons, I would reverse the
judgment of the Court of Appeals. Respectfully, I dissent.
APPENDIX
Congressional Materials
(in reverse chronological order)
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# # #
Return to Table of Contents for
U.S. v. Lopez