United States v. Lopez
Opinion of the Court
delivered the opinion of the Court.
In the Gun-Free School Zones Act of 1990, Congress made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” 18 U. S. C. § 922(q)(1)(A) (1988 ed., Supp. V). The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress “[t]o regulate Commerce . . . among the several States . . . .” 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. § 46.03(a)(1) (Supp. 1994). The next day, the state charges were dismissed after federal agents charged respondent by complaint with violating the Gun-Free School Zones Act of 1990. 18 U. S. C. § 922(q)(1)(A) (1988 ed., Supp. V).
A federal grand jury indicted respondent on one count of knowing possession of a firearm at a school zone, in violation of § 922(q). Respondent moved to dismiss his federal indictment on the ground that § 922(q) “is unconstitutional as it is beyond the power of Congress to legislate control over our public schools.” The District Court denied the motion, concluding that § 922(q) “is a constitutional exercise of Congress’ well-defined power to regulate activities in and affecting
On appeal, respondent challenged his conviction based on his claim that § 922(q) exceeded Congress’ power to legislate under the Commerce Clause. The Court of Appeals for the Fifth Circuit agreed and reversed respondent’s conviction. It held that, in light of what it characterized as insufficient congressional findings and legislative history, “section 922(q), in the full reach of its terms, is invalid as beyond the power of Congress under the Commerce Clause.” 2 F. 3d 1342, 1367-1368 (1993). Because of the importance of the issue, we granted certiorari, 511 U. S. 1029 (1994), and we now affirm.
We start with first principles. The Constitution creates a Federal Government of enumerated powers. See Art. I, § 8. As James Madison wrote: “The 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 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.” 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.” Art. I, §8,
“Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.”
The commerce power “is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.” Id., at 196. The Gibbons Court, however, acknowledged that limitations on the commerce power are inherent in the very language of the Commerce Clause.
“It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary.
“Comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce which concerns more States than one.... The enumeration presupposes something not enumerated; and that something, if we regard the language, or the subject of the sentence, must be the exclusively internal commerce of a State.” Id., at 194-195.
For nearly a century thereafter, the Court’s Commerce Clause decisions dealt but rarely with the extent of Congress’ power, and almost entirely with the Commerce Clause as a limit on state legislation that discriminated against interstate commerce. See, e. g., Veazie v. Moor, 14 How. 568, 573-575 (1853) (upholding a state-created steamboat monop
In 1887, Congress enacted the Interstate Commerce Act, 24 Stat. 379, and in 1890, Congress enacted the Sherman Antitrust Act, 26 Stat. 209, as amended, 15 U. S. C. § 1 et seq. These laws ushered in a new era of federal regulation under the commerce power. When cases involving these laws first reached this Court, we imported from our negative Commerce Clause cases the approach that Congress could not regulate activities such as “production,” “manufacturing,” and “mining.” See, e. g., United States v. E. C. Knight Co., 156 U. S. 1, 12 (1895) (“Commerce succeeds to manufacture, and is not part of it”); Carter v. Carter Coal Co., 298 U. S. 238, 304 (1936) (“Mining brings the subject matter of commerce into existence. Commerce disposes of it”). Simultaneously, however, the Court held that, where the interstate and intrastate aspects of commerce were so mingled together that full regulation of interstate commerce required incidental regulation of intrastate commerce, the Commerce Clause authorized such regulation. See, e. g., Shreveport Rate Cases, 234 U. S. 342 (1914).
In A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 550 (1935), the Court struck down regulations that
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.
In Wickard v. Filburn, the Court upheld the application of amendments to the Agricultural Adjustment Act of 1938 to the production and consumption of homegrown wheat. 317 U. S., at 128-129. The Wickard Court explicitly rejected earlier distinctions between direct and indirect effects on interstate commerce, stating:
“[Ejven 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
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
Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power. Perez, supra, at 150; see also Hodel, supra, at 276-277. First, Congress may regulate the use of the channels of interstate commerce. See, e.g., Darby, 312 U. S., at 114; Heart of Atlanta Motel, supra, at 256 (“ ‘[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question’ ” (quoting Caminetti v. United States, 242 U. S. 470, 491 (1917))). Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. See, e. g., Shreveport Rate Cases, 234 U. S. 342 (1914); Southern R. Co. v. United States, 222 U. S. 20 (1911) (upholding amendments to Safety Appliance Act as applied to vehicles used in intrastate commerce); Perez, supra, at 150 (“[F]or example, the destruction of an aircraft (18 U. S. C. § 32), or... thefts from interstate shipments (18 U. S. C. § 659)”). Finally, Congress’ commerce authority includes the power to regulate those ac
Within this final category, admittedly, our case law has not been clear whether an activity must “affect” or “substantially affect” interstate commerce in order to be within Congress’ power to regulate it under the Commerce Clause. Compare Preseault v. ICC, 494 U. S. 1, 17 (1990), with Wirtz, supra, at 196, n. 27 (the Court has never declared that “Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities”). We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity “substantially affects” interstate commerce.
We now turn to consider the power of Congress, in the light of this framework, to enact § 922(q). The first two categories of authority may be quickly disposed of: § 922(q) is not a regulation of the use of the channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a commodity through the channels of commerce; nor can § 922(q) be justified as a regulation by which Congress has sought to protect an instrumentality of interstate commerce or a thing in interstate commerce. Thus, if § 922(q) is to be sustained, it must be under the third category as a regulation of an activity that substantially affects interstate commerce.
First, we have upheld a wide variety of congressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected interstate commerce. Examples include the regulation of intrastate coal mining; Hodel, supra, intrastate extortionate credit transactions, Perez, supra, restaurants utilizing substantial interstate supplies, McClung, supra, inns and hotels catering to interstate guests, Heart of Atlanta Motel, supra, and pro
Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not. Roscoe Filburn operated a small farm in Ohio, on which, in the year involved, he raised 23 acres of wheat. It was his practice to sow winter wheat in the fall, and after harvesting it in July to sell a portion of the crop, to feed part of it to poultry and livestock on the farm, to use some in making flour for home consumption, and to keep the remainder for seeding future crops. The Secretary of Agriculture assessed a penalty against him under the Agricultural Adjustment Act of 1938 because he harvested about 12 acres more wheat than his allotment under the Act permitted. The Act was designed to regulate the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and shortages, and concomitant fluctuation in wheat prices, which had previously obtained. The Court said, in an opinion sustaining the application of the Act to Filburn’s activity:
“One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market.*561 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.
Second, § 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce. For example, in United States v. Bass, 404 U. S. 336 (1971), the Court interpreted former 18 U. S. C. § 1202(a), which made it
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., at 17, the Government concedes that “[njeither 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;
The Government argues that Congress has accumulated institutional expertise regarding the regulation of firearms through previous enactments. Cf. Fullilove v. Klutznick, 448 U. S. 448, 503 (1980) (Powell, J., concurring). We agree, however, with the Fifth Circuit that importation of previous findings to justify §922(q) is especially inappropriate here because the “prior federal enactments or Congressional findings [do not] speak to the subject matter of section 922(q) or its relationship to interstate commerce. Indeed, section 922(q) plows thoroughly new ground and represents a sharp break with the long-standing pattern of federal firearms legislation.” 2 F. 3d, at 1366.
The Government’s essential contention, in fine, is that we may determine here that § 922(q) is valid because possession of a firearm in a local school zone does indeed substantially affect interstate commerce. Brief for United States 17. The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent
We pause to consider the implications of the Government’s arguments. The Government admits, under its “costs of crime” reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. See Tr. of Oral Arg. 8-9. Similarly, under the Government’s “national productivity” reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of § 922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is' without power to regulate.
Although Justice Breyer argues that acceptance of the Government’s rationales would not authorize a general federal police power, he is unable to identify any activity that the States may regulate but Congress may not. Justice Breyer posits that there might be some limitations on Con
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 619-624. 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 623. This analysis would be equally applicable, if not more so, to subjects such as family law and direct regulation of education.
For instance, if Congress can, pursuant to its Commerce Clause power, regulate activities that adversely affect the learning environment, then, a fortiori, it also can regulate the educational process directly. Congress could determine that a school’s curriculum has a “significant” effect on the extent of classroom learning. As a result, Congress could mandate a federal curriculum for local elementary and secondary schools because what is taught in local schools has a significant “effect on classroom learning,” cf. ibid., 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 629. 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
Admittedly, a determination whether an intrastate activity is commercial or noncommercial may in some eases 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 630. As Chief Justice Marshall stated in McCulloch v. Maryland, 4 Wheat. 316 (1819):
“Th[e] [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 Art. I, § 8. Congress has operated within this framework of legal uncertainty ever since this Court determined that it was the Judiciary’s duty “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803) (Marshall, C. J.). Any possible benefit from eliminating this “legal uncertainty” would be at the expense of the Constitution’s system of enumerated powers.
In Jones & Laughlin Steel, 301 U. S., at 37, we held that the question of congressional power under the Commerce Clause “is necessarily one of degree.” To the same effect
“There is a view of causation that would obliterate the distinction between 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. Schechter 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 556-558. 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
For the foregoing reasons the judgment of the Court of Appeals is
Affirmed.
The term “school zone” is defined as “in, or on the grounds of, a public, parochial or private school” or “within a distance of 1,000 feet from the grounds of a public, parochial or private school.” §921(a)(25).
See also Hodel, 452 U. S., at 311 (“[SJimply 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 (“[Wjhether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court”) (Black, J., concurring).
Under our federal system, the “ ‘States possess primary authority for defining and enforcing the criminal law.’” Brecht v. Abrahamson, 507 U. S. 619, 635 (1993) (quoting Engle v. Isaac, 456 U. S. 107, 128 (1982)); see also Screws v. United States, 325 U. S. 91, 109 (1945) (plurality opinion) (“Our national government is one of delegated 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. Enmons, 410 U. S. 396, 411-412 (1973) (quoting United States v. Bass, 404 U. S. 336, 349 (1971)). The Government acknowledges that § 922(q) “displaced] 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 the Congress”).
We note that on September 13,1994, President Clinton signed into law the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 1796. Section 320904 of that Act, id., at 2125, amends § 922(q) to include congressional findings regarding the effects of firearm possession in and around schools upon interstate and foreign commerce. The Government does not rely upon these subsequent findings as a substitute for the absence of findings in the first instance. Tr. of Oral Arg. 25 (“[W]e’re not relying on them in the strict sense of the word, but we think that at a very minimum they indicate that reasons can be identified for why Congress wanted to regulate this particular activity”).
Concurring Opinion
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,
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 ex rel. Soc. for Relief of Distressed Pilots, 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 manufacture] and commerce. Manufacture is transformation — the fashioning of raw mate
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 employé’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. 468, 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”).
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 “intra
Even the most confined interpretation of “commerce” would embrace transportation between the States, so the rate cases posed much less difficulty for the Court than cases involving manufacture or production. Nevertheless, the Court’s recognition of the importance of a practical conception of the commerce power was not altogether confined to the rate cases. In Swift & Co. v. United States, 196 U. S. 375 (1905), the Court upheld the application of federal antitrust law to a combination of meat dealers that occurred in one State but that restrained trade in cattle “sent for sale from a place in one State, with the expectation that they will end their transit ... in another.” Id., at 398. The Court explained that “commerce among the States is not a technical legal conception, but a practical one, drawn from the course of business.” Ibid. 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 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,” 317 U. S., at 122, and “[w]hatever 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
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*575 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. 144, 157 (1992) (emphasis deleted).
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, Inc., ante, p. 211. 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 Pa. v. Casey, 505 U. S. 833 (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 Foreword, 86
The theory that two governments accord more liberty than one requires for its realization two distinct and discern-able 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
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
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 Tex. 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. Memphis, 20 Wall. 590 (1875); Michigan v. Long, 463 U. S. 1032 (1983), the whole jurisprudence of pre-emption, see, e. g., Rice v. Santa Fe Elevator Corp., 331 U. S. 218 (1947); Cipollone v. Liggett Group, Inc., 505 U. S. 504 (1992), and many of the rules governing our habeas jurisprudence, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991); McCleskey
Our ability to preserve this principle under the Commerce Clause has presented a much greater challenge. See supra, at 568-574. “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., ante, at 180. 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
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 has a commercial character, and neither the purposes nor the design of the statute has an evident commercial nexus. See ante, at 559-561. 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);
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) (Brandéis, J., dissenting).
If a State or municipality determines that harsh criminal sanctions are necessary and wise to deter students from carrying guns on school premises, the reserved powers of the States are sufficient to enact those measures. Indeed, over 40 States already have criminal laws outlawing the possession of firearms on or near school grounds. See, e. g., Alaska Stat. Ann. §§ 11.61.195(a)(2)(A), 11.61.220(a)(4)(A) (Supp. 1994); Cal. Penal Code Ann. § 626.9 (West Supp. 1994); Mass. Gen. Laws § 269:10(j) (1992); N. J. Stat. Ann. § 2C:39-5(e) (West Supp. 1994); Va. Code Ann. § 18.2-308.1 (1988); Wis. Stat. § 948.605 (1991-1992).
Other, more practicable means to rid the schools of guns may be thought by the citizens of some States to be preferable for the safety and welfare of the schools those States are
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. 144 (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.
Concurring Opinion
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. 144, 155 (1992) (“[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”) (emphasis deleted). Indeed, on this crucial point, the majority and Justice Breyer agree in principle: The Federal
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 602 (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 Die
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
Moreover, interjecting a modern sense of commerce into the Constitution generates significant textual and structural problems. For example, one cannot replace “commerce” with a different type of enterprise, such as manufacturing. When a manufacturer produces a car, assembly cannot take place “with a foreign nation” or “with the Indian Tribes.” Parts may come from different States or other nations and hence may have been in the flow of commerce at one time, but manufacturing takes place at a discrete site. Agriculture and manufacturing involve the production of goods; commerce encompasses traffic in such articles.
The Port Preference Clause also suggests that the term “commerce” denoted sale and/or transport rather than business generally. According to that Clause, “[n]o Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another.” U. S. Const., Art. I, § 9, cl. 6. Although it is possible to conceive of regulations of manufacturing or farming that prefer one port over another, the more natural reading is that the Clause prohibits Congress from using its commerce power to channel commerce through certain favored ports.
The Constitution not only uses the word “commerce” in a narrower sense than our case law might suggest, it also does not support the proposition that Congress has authority over all activities that “substantially affect” interstate commerce. The Commerce Clause
In addition to its powers under the Commerce Clause,' Congress has the authority to enact such laws as are “necessary and proper” to carry into execution its power to regulate commerce among the several States. U. S. Const., Art. I, § 8, cl. 18. But on this Court’s understanding of congressional power under these two Clauses, many of Congress’ other enumerated powers under Art. I, § 8, are wholly superfluous. After all, if Congress may regulate all matters that substantially affect commerce, there is no need for the Constitution to specify that Congress may enact bankruptcy laws, cl. 4, or coin money and fix the standard of weights and measures, cl. 5, or punish counterfeiters of United States coin and securities, cl. 6. Likewise, Congress would not need the separate authority to establish post offices and post roads, cl. 7, or to grant patents and copyrights, cl. 8, or to “punish Piracies and Felonies committed on the high Seas,” cl. 10. It might not even need the power to raise and support an Army and Navy, els. 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 spec
Put simply, much if not all of Art. I, § 8 (including portions of the Commerce Clause itself), would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of cl. 3 that makes the rest of § 8 superfluous simply cannot be correct. Yet this Court’s Commerce Clause jurisprudence has endorsed just such an interpretation: The power we have accorded Congress has swallowed Art. I, § 8.
Indeed, if a “substantial effects” test can be appended to the Commerce Clause, why not to every other power of the Federal Government? There is no reason for singling out the Commerce Clause for special treatment. Accordingly, Congress could regulate all matters that “substantially affect” the Army and Navy, bankruptcies, tax collection, expenditures, and so on. In that case, the Clauses of §8 all mutually overlap, something we can assume the Founding Fathers never intended.
Our construction of the scope of congressional authority has the additional problem of coming close to turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution. Taken together, these fundamental textual problems should, at the very least, convince us that the “substantial effects” test should be reexamined.
The exchanges during the ratification campaign reveal the relatively limited reach of the Commerce Clause and of federal power generally. The Founding Fathers confirmed that most areas of life (even many matters that would have substantial effects on commerce) would remain outside the reach of the Federal Government. Such affairs would continue to be under the exclusive control of the States.
Early Americans understood that commerce, manufacturing, and agriculture, while distinct activities, were intimately related and dependent on each other — that each “substantially affected” the others. After all, items produced by farmers and manufacturers were the primary articles of commerce at the time. If commerce was more robust as a result of federal superintendence, farmers and manufacturers could benefit. Thus, Oliver Ellsworth of Connecticut attempted to convince farmers of the benefits of regulating commerce. “Your property and riches depend on a ready demand and generous price for the produce you can annually spare,” he wrote, and these conditions exist “where trade flourishes and when the merchant can freely export the produce of the country” to nations that will pay the highest price. A Landholder No. 1, Connecticut Courant, Nov. 5, 1787, in 3 Documentary History of the Ratification of the Constitution 399 (M. Jensen ed. 1978) (hereinafter Documentary History). See also The Federalist No. 35, at 219 (A. Hamilton) (“[Discerning 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
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
. 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.
In short, the Founding Fathers were well aware of what the principal dissent calls “‘economic . . . realities.’” See
Ill
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 615. And, “with the exception of one wrong turn subsequently corrected,” this has been the “traditiona[l]” method of interpreting the Commerce Clause. Post, at 631 (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 understood, when the constitution was framed.” 9 Wheat., at 190. The Court also ob
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 “[inspection 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
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.
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
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
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 “Commerce succeeds to manufacture, and is not a part of it.” Id., at 12. The Court also approvingly quoted from Kidd v. Pearson, 128 U. S. 1, 20 (1888):
‘“No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufacture and commerce .... If it be held that the term [commerce] includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested ... with the power to regulate, not only manufactures, but also agriculture, horticulture, stock raising, domestic fisheries, mining — in short, every branch of human industry.’” E. C. Knight, supra, 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.
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.
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
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.
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.
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.
All references to The Federalist are to the Jacob E. Cooke 1961 edition.
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. I, § 8, cl. 3. Although the precise line between
There are other powers granted to Congress outside of Art. I, § 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. I, § 8, cl. 17, and Art. IV, § 3, cl. 2. The grant of comprehensive legislative power over 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.
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 transferring property, or the rule of descents, in Virginia?”); id., at 553 (J. Marshall at the Virginia convention) (denying that 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 descent 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”).
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 (1827); Willson v. Black Bird Creek Marsh Co., 2 Pet. 245 (1829).
It is worth noting that Congress, in the first federal criminal Act, did not establish nationwide prohibitions against murder and the like. See Act of Apr. 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. I, § 8, cl. 10 (authorizing Congress to outlaw piracy and felonies on high seas); Art. IV, §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 Apr. 30, 1790, supra, §§ 1 and 14 (prohibitions against treason and the counterfeiting of U. S. securities), with U. S. Const., Art. I, § 8, cl. 6 (counterfeiting); Art. III, § 3, cl. 2 (treason). Notwithstanding any substantial effects that murder, kidnaping, or gun possession might have had on interstate commerce, Congress understood that it could not establish nationwide prohibitions.
Likewise, there were no laws in the early Congresses that regulated manufacturing and agriculture. Nor was there any statute that purported to regulate activities with “substantial effects” on interstate commerce.
To be sure, congressional power pursuant to the Commerce Clause was alternatively described less narrowly or more narrowly during this 150-year period. Compare United States v. Coombs, 12 Pet. 72, 78 (1838) (commerce power “extends to such acts, done on land, which interfere with, obstruct, or prevent the due exercise of the power to regulate [interstate and international] commerce” such as stealing goods from a beached ship), with United States v. E. C. Knight Co., 156 U. S. 1, 13 (1895) (“Contracts to buy, sell, or exchange goods to be transported among the several States, the transportation and its instrumentalities ... may be regulated, but this is because they form part of interstate trade or commerce”). During this period, however, this Court never held that Congress could regulate everything that substantially affects commerce.
Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean.
Nor can the majority’s opinion fairly be compared to Lochner v. New York, 198 U. S. 45 (1905). See post, at 604-609 (Souter, J., dissenting). Unlike Lochner and our more recent “substantive due process” cases, today’s decision enforces only the Constitution and hot “judicial policy judgments.” See post, at 607. Notwithstanding Justice Souter’s discussion, “‘commercial’ character” is not only a natural but an inevitable “ground of Commerce Clause distinction.” See post, at 608 (emphasis added). Our invalidation of the Gun-Free School Zones Act therefore falls comfortably 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 (J. 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 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 614, in enforcing the Constitution.
Dissenting Opinion
dissenting.
The welfare of our future “Commerce with foreign Nations, and among the several States,” U. S. Const., Art. I, § 8, cl. 3, is vitally dependent on the character of the education of our children. I therefore agree entirely with Justice Breyer’s explanation of why Congress has ample power to prohibit the possession of firearms in or near schools — just as it may protect the school environment from harms posed by controlled substances such as asbestos or alcohol. I also agree with Justice Souter’s exposition of the radical character of the Court’s holding and its kinship with the discredited, pre-Depression version of substantive due process. Cf. Dolan v. City of Tigard, 512 U. S. 374, 4 05-411 (1994) (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 con
Indeed, there is evidence that firearm manufacturers — aided by a federal grant — are specifically targeting schoolchildren 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.
Dissenting Opinion
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.
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
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 Consti
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
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 558-561. The distinction between what is patently commercial and what is not looks much like the old distinction between what directly affects commerce and what touches it only indirectly. And the act of calibrating the level of deference by drawing a line between what is patently commercial and what is less purely so will probably resemble the process of deciding how much interference with contractual freedom was fatal. Thus, it seems fair to ask whether the step taken by the Court today does anything but portend a return to the untenable jurisprudence from which the Court extricated itself almost 60 years ago. The answer is not reassuring. To be sure, the occasion for today’s decision reflects the century’s end, not its beginning. But if it seems anomalous that the Congress of the United States has taken to regulating school yards, the Act in question is still probably no more remarkable than state regulation of bake shops 90 years ago. In any event, there is no reason to hope that the Court’s qualification of rational basis review will be any more successful than the efforts at substantive economic review made by our predecessors as the century began. Taking the Court’s opinion on its own terms, Justice Breyer has explained both the hopeless porosity of “commercial” character as a ground of Commerce Clause distinction in America’s highly connected economy, and the inconsistency of this categorization with our rational basis precedents from the last 50 years.
Further glosses on rationality review, moreover, may be in the offing. Although this case turns on commercial character, the Court gestures toward two other considerations that it might sometime entertain in applying rational basis
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., supra, at 276; United States v. Darby, 312 U. S., 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:
*610 “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. Likewise, when faced with two plausible interpretations of a federal criminal statute, we generally will take the alternative that does not force us to impute an intention to Congress to use its full commerce power to regulate conduct traditionally and ably regulated by the States. See United States v. Enmons, 410 U. S. 396, 411-412 (1973); United States v. Bass, 404 U. S. 336, 349-350 (1971); Rewis v. United States, 401 U. S. 808, 812 (1971).
These clear statement rules, however, are merely rules of statutory interpretation, to be relied upon only when the
There remain questions about legislative findings. The Court of Appeals expressed the view, 2 F. 8d 1342, 1363-1368 (CA5 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 562-563. 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)?
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
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, Inc., 508 U. S., at 315 (in the equal protection context, “those attacking the rationality of the legislative classification have the burden to negate 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
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 563, that the addition of congressional findings could in principle have affected the fate of the statute here.
Ill
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 sugges
I respectfully dissent.
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.
Unlike the Court, (perhaps), I would see no reason not to consider Congress’s findings, insofar as they might be helpful in reviewing the challenge to this statute, even though adopted in later legislation. See the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, § 320904, 108 Stat. 2125 (“[T]he occurrence of violent crime in school zones has resulted in a decline in the quality of education in our country; . . . this decline . . . has an adverse impact on interstate commerce and the foreign commerce of the United States; . . . Congress has power, under the interstate commerce clause and other provisions of the Constitution, to enact measures to ensure the integrity and safety of the Nation’s schools by enactment of this subsection”). The findings, however, go no further than expressing what is obviously implicit in the substantive legislation, at such a conclusory level of generality as to add virtually nothing to the record. The Solicitor General certainly exercised sound judgment in placing no significant reliance on these particular afterthoughts. Tr. of Oral Arg. 24-25.
Dissenting Opinion
dissenting.
The issue in this case is whether the Commerce Clause authorizes Congress to enact a statute that makes it a crime to possess a gun in, or near, a school. 18 U. S. C. § 922(q)(1)(A) (1988 ed., Supp. V). In my view, the statute falls well within the scope of the commerce power as this Court has understood that power over the last half century.
I
In reaching this conclusion, I apply three basic principles of Commerce Clause interpretation. First, the power to “regulate Commerce . . . among the several States,” U. S. Const., Art. I, § 8, cl. 3, encompasses the power to regulate local activities insofar as they significantly affect interstate commerce. See, e. g., Gibbons v. Ogden, 9 Wheat. 1, 194-195 (1824) (Marshall, C. J.); Wickard v. Filburn, 317 U. S. 111, 125 (1942). As the majority points out, ante, at 559, 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 & 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)
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
I recognize that we must judge this matter independently. “[SJimply 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. 622, 666 (1994) (opinion of Kennedy, J.) (“Congress is not obligated, when enacting its statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review”); 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 prolonged debate . . .”). It would seem particularly unfortunate to make the validity of
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. §§ 922(q)(1)(F), (G). 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
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 widespread violence in schools throughout the Nation significantly interferes with the quality of education in those schools. See, e. g., House Judiciary Committee Hearing 44 (1990) (linking school violence to dropout 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). 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.
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
“[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. . . . [Bjetter-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
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 Mac-Cormack, Newman, & Rosenfield 73; Coffee 296. Scholars on the subject report, for example, that today, “[h]igh speed communication and transportation make it possible to produce most products and services anywhere in the world,” National Center 38; that “[mjodern 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
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 618, 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. §§ 922(q)(1)(F), (G). The violence-related facts, the educa
To hold this statute constitutional is not to “obliterate” the “distinction between what is national and what is local,” ante, at 567 (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 564. First, this statute is aimed at curbing a particularly acute threat to the educational process — the possession (and use) of life-threatening firearms in, or near, the classroom. The empirical evidence that I have discussed above unmistakably documents the special way in which guns and education are incompatible. See supra, at 619. This Court has previously recognized the singularly disruptive potential on interstate commerce that acts of violence may have. See Perez, supra, at 156-157. Second, 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
Ill
The majority’s holding — that §922 falls outside the scope of the Commerce Clause — creates three serious legal problems. First, the majority’s holding runs contrary to modern Supreme Court cases that have upheld congressional actions despite connections to interstate or foreign commerce that are less significant than the effect of school violence. In Perez v. 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 transactions”) at a local level. The Court said that Congress may judge that such transactions, “though purely mirastate, . . . 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
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 paddle-boats, 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. § 922(q)(1)(E).) 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
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) homegrown 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, homegrown 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 Mfrs. 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 preventive 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 “transaction[s].” Ante, at 561. 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
*628 “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.) (“[Cjommerce 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 559, 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 Filburn’s consumption of homegrown 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 ease 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
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). 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
The third legal problem created by the Court’s holding is that it threatens legal uncertainty in an area of law that, until this case, seemed reasonably well settled. Congress has enacted many statutes (more than 100 sections of the United States Code), including criminal statutes (at least 25 sections), that use the words “affecting commerce” to define their scope, see, e. g., 18 U. S. C. § 844(i) (destruction of buildings used in activity affecting interstate commerce), and other statutes that contain no jurisdictional language at all, see, e. g., 18 U. S. C. § 922(o)(l) (possession of machineguns). 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 instances 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
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 TO OPINION OF BREYER, J.
Congressional Materials
(in reverse chronological order)
Private Sector Management of Public Schools, Hearing before the Subcommittee on Labor, Héalth and Human Services, and Education and Related Agencies of the Senate Committee on Appropriations, 103d Cong., 2d Sess. (1994) (Senate Appropriations Committee Hearing (1994)).
Keeping Every Child Safe: Curbing the Epidemic of Violence, Joint Hearing before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources and the House Select Committee on Children, Youth, and Families, 103d Cong., 1st Sess. (1993).
Recess from Violence: Making our Schools Safe, Hearing before the Subcommittee on Education, Arts and Humanities of the Senate Committee on Labor and Human Resources, 103d Cong., 1st Sess. (1993) (Senate Labor and Human Resources Committee Hearing (1993)).
Preparing for the Economy of the 21st Century, Hearings before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, 102d Cong., 2d Sess. (1992).
Children Carrying Weapons: Why the Recent Increase, Hearing before the Senate Committee on the Judiciary, 102d Cong., 2d Sess. (1992).
Youth Violence Prevention, Hearing before the Senate Committee on Governmental Affairs, 102d Cong., 2d Sess. (1992).
School Dropout Prevention and Basic Skills Improvement Act of 1990, Pub. L. 101-600, § 2(a)(2), 104 Stat. 3042.
Excellence in Mathematics, Science and Engineering Education Act of 1990, 104 Stat. 2883, 20 U. S. C. § 5301(a)(5) (1988 ed., Supp. V).
Oversight Hearing on Education Reform and American Business and the Implementation of the Hawkins-Stafford Amendments of 1988, Hearing before the Subcommittee on Elementary, Secondary, and Vocational Training of the
U. S. Power in a Changing World, Report Prepared for the Subcommittee on International Economic Policy and Trade of the House Committee on Foreign Affairs, 101st Cong., 2d Sess., 43-66 (1990).
Gun Free School Zones Act of 1990, Hearing before the Subcommittee on Crime of the House Committee on the Judiciary, 101st Cong., 2d Sess. (1990) (House Judiciary Committee Hearing (1990)).
Restoring American Productivity: The Role of Education and Human Resources, Hearing before the Senate Committee on Labor and Human Resources, 101st Cong., 1st Sess. (1989).
Children and Guns, Hearing before the House Select Committee on Children, Youth, and Families, 101st Cong., 1st Sess. (1989) (House Select Committee Hearing (1989)).
Education and Training for a Competitive America Act of 1988, Pub. L. 100-418, Title VI, 102 Stat. 1469.
S. Rep. No. 100-222 (1987).
Education and Training for American Competitiveness, Hearings before the House Committee on Education and Labor, 100th Cong., 1st Sess. (1987).
Competitiveness and the Quality of the American Work Force, Hearings before the Subcommittee on Education and Health of the Joint Economic Committee, 100th Cong., 1st Sess., pts. 1 and 2 (1987).
Oversight Hearing on Illiteracy, Joint Hearing before the Subcommittee on Elementary, Secondary, and Vocational Education of the House Committee on Education and Labor and the Subcommittee on Education, Arts and Humanities of the Senate Committee on Labor and Human Resources, 99th Cong., 2d Sess. (1986).
Crime and Violence in the Schools, Hearing before the Subcommittee on Juvenile Justice of the Senate Committee on the Judiciary, 98th Cong., 2d Sess. (1984).
H. R. Rep. No. 98-6, pts. 1 and 2 (1983).
S. Rep. No. 98-151 (1983).
Education for Economic Security Act, Hearings before the Subcommittee on Education, Arts and Humanities of the Senate Committee on Labor and Human Resources, 98th Cong., 1st Sess. (1983).
Pub. L. 93-380, §825, 88 Stat. 602 (1974).
I. Clarke, Art and Industry: Instruction in Drawing Applied to the Industrial and Fine Arts, S. Exec. Doc. No. 209, 46th Cong., 2d Sess., pt. 2 (1891).
Other Federal Government Materials
(in reverse chronological order)
U. S. Dept, of Education, Office of Educational Research and Improvement, First Findings: The Educational Quality of the Workforce Employer Survey (Feb. 1995).
Economic Report of the President 108 (Feb. 1994).
U. S. Dept, of Commerce, Statistical Abstract of the United States (1993) (Statistical Abstract (1993)).
U. S. Dept, of Education, Office of Educational Research and Improvement, Public School Education Financing for School Year 1989-90 (June 1993) (U. S. Dept, of Education (1993)).
Economic Report of the President 101 (Feb. 1992).
U. S. Dept, of Labor, Secretary’s Commission on Achieving Necessary Skills, Skills and Tasks For Jobs: A SCANS- Report for America 2000 (1992).
U. S. Dept, of Justice, Bureau of Justice Statistics, School Crime: A National Crime Victimization Survey Report (Sept. 1991) (U. S. Dept, of Justice (1991)).
U. S. Dept, of Commerce, Bureau of Census, 1990 Census of Population: Education in the United States 474 (Jan. 1994).
U. S. Dept, of Justice, Office of Juvenile Justice and Delinquency Prevention, Weapons in Schools, OJJDP Bulletin 1 (Oct. 1989) (U. S. Dept, of Justice (1989)).
U. S. Dept, of Labor, Bureau of Labor Statistics, Handbook of Labor Statistics 281, 561, 576 (Aug. 1989) (Handbook of Labor Statistics (1989)).
Bishop, Incentives for Learning: Why American High School Students Compare So Poorly to their Counterparts Overseas, in 1 U. S. Dept, of Labor, Commission on Workforce Quality & Labor Market Efficiency, Investing in People 1 (Sept. 1989).
Rumberger & Levin, Schooling for the Modern Workplace, in 1 U. S. Dept, of Labor, Commission on Workforce Quality & Labor Market Efficiency, Investing in People 85 (Sept. 1989).
U. S. Dept, of Education and U. S. Department of Labor, The Bottom Line: Basic Skills in the Workplace 12 (1988).
U. S. Dept, of Labor, Employment and Training Administration, Estimating Educational Attainment of Future Employment Demand for States (Oct. 1981) (U. S. Dept, of Labor (1981)).
U. S. Dept, of Health, Education, and Welfare, National Institute of Education, Violent Schools — Safe Schools: The Safe School Study Report to Congress (1978) (U. S. Dept, of Health (1978)).
Other Readily Available Materials
(in alphabetical order)
Akin & Garfinkel, School Expenditures and the Economic Returns to Schooling, 12 J. Human Resources 462 (1977).
American Council on Education, Business-Higher Education Forum, America’s Competitive Challenge: A Report to the President of the United States (Apr. 1983).
Applebome, Employers Wary of School System, N. Y. Times, Feb. 20, 1995, p. Al, col. 1.
Are Real Estate Firms Ready to Ride on the Infobahn?: Information Highway of Technology, 36 National Real Estate Investor, Oct. 1994, p. 6.
Aring, What the ‘V’ Word is Costing America’s Economy: Vocational Education, 74 Phi Delta Kappan 396 (1993).
G. Atkinson, The Economics of Education (1983).
Becker, The Adam Smith Address: Education, Labor Force Quality, and the Economy, Business Economics, Jan. 1992, p. 7 (Becker (1992)).
G. Becker, Human Capital (3d ed. 1993) (Becker (1993)).
I. Berg, Education and Jobs: The Great Training Robbery (1970).
Berryman, The Economy, Literacy Requirements, and At-Risk Adults, in Literacy and the Marketplace: Improving the Literacy of Low-Income Single Mothers 22 (June 1989).
Bishop, Is the Test Score Decline Responsible for the Productivity Growth Decline?, 79 Am. Econ. Rev. 178 (Mar. 1989).
Bishop, High School Performance and Employee Recruitment, 13 J. Labor Research 41 (1992).
Blackburn, What Can Explain the Increase in Earnings Inequality Among Males?, 29 Industrial Relations 441 (1990).
A. Bolino, A Century of Human Capital by Education and Training (1989) (Bolino).
Boyle, Expansion Management’s Education Quotient, Economic Development Rev., Winter 1992, pp. 23-25 (Boyle).
Brandel, Wake Up Get Smart, New England Business, May 1991, p. 46.
Callahan & Rivara, Urban High School Youth and Handguns: A School-Based Survey, 267 JAMA 3038 (1992).
Card & Krueger, Does School Quality Matter? Returns to Education and the Characteristics of Public Schools in the United States, 100 J. Pol. Econ. 1 (1992).
A. Carnevale, America and the New Economy: How New Competitive Standards are Radically Changing American Workplaces (1991).
A. Carnevale and J. Porro, Quality Education: School Reform for the New American Economy 31-32 (1994).
Center to Prevent Handgun Violence, Caught in the Crossfire: A Report on Gun Violence in our Nation’s Schools (Sept. 1990).
Centers For Disease Control, Leads from the Morbidity and Mortality Weekly Report, 266 JAMA 2342 (1991) (Centers for Disease Control).
Chubb & Hanushek, Reforming Educational Reform, in Setting National Priorities 213 (H. Aaron ed. 1990) (Chubb & Hanushek).
J. Chubb & T. Moe, Politics, Markets, and America’s Schools (1990) (Chubb & Moe).
Coffee, Survey: Worker Skills, Training More Important in Site Selection, Site Selection, Apr. 1993, p. 296 (Coffee).
E. Cohn, The Economics of Education (rev. ed. 1979).
Council on Competitiveness, Elevating the Skills of the American Workforce (May 1993).
Council on Competitiveness, Governing America: A Competitiveness Policy Agenda for The New Administration 33-39 (1989).
R. Cyert & D. Mowery, Technology and Employment: Innovation and Growth in the U. S. Economy (1987) (Cyert & Mowery).
J. Cynoweth, Enhancing Literacy for Jobs and Productivity: Council of State Policy and Planning Agencies Report (1994).
J. Davis & J. Morrall, Evaluating Educational Investment (1974) (Davis & Morrall).
Denison, Education and Growth, in Economics and Education 237 (D. Rogers & H. Ruchlin eds. 1971) (Denison).
M. Dertouzos, R. Lester, & R. Solow, MIT Commission on Industrial Productivity, Made In America: Regaining the Productive Edge (1989).
A. DeYoung, Economics and American Education: A Historical and Critical Overview of the Impact of Economic Theories on Schooling in the United States (1989).
Downs, America’s Educational Failures Will Hurt Real Estate, National Real Estate Investor, Aug. 1988, p. 34.
Doyle, The Role of Private Sector Management in Public Education, 76 Phi Delta Kappan 128 (1994).
Education and Economic Development (C. Anderson & M. Bowman eds. 1965).
Education Commission of the States, Task Force on Education for Economic Growth, Action for Excellence (June 1983).
Educational Testing Service, Developing the Skills and Knowledge of the Workforce (1993).
Ganderton & Griffin, Impact of Child Quality on Earnings: The Productivity-of-Schooling Hypothesis, 11 Contemporary Policy Issues 39 (July 1993).
Garver, “Success Story!”: The Evolution of Economic Development in Broward County, Florida, 11 Economic Development Review 85 (Summer 1993).
Gibbs, Schools for Profit, Time, Oct. 17, 1994, p. 48 (Gibbs).
Gintis, Education, Technology, and the Characteristics of Worker Productivity, 61 Am. Econ. Rev. 266 (1971).
Glazer, A Human Capital Policy for the Cities, Public Interest, Summer 1993, p. 27.
Glazer, Violence in Schools: Can Anything be Done to Curb the Growing Violence?, The CQ Researcher, Sept. 11, 1992, pp. 785-808.
E. Gordon, J. Ponticell, & R. Morgan, Closing the Literacy Gap in American Business 23 (1991) (Gordon, Ponticell, & Morgan).
E. Hanushek, Making Schools Work: Improving Performance and Controlling Costs (1994) (Hanushek).
Henkoff, Where Will the Jobs Come From?, Fortune, Oct. 19, 1992, p. 58 (Henkoff).
Herbert, Reading, Writing, Reloading, N. Y. Times, Dec. 14, 1994, p. A23, col. 1.
Industry’s New Schoolhouse, N. Y. Times, Jan. 9, 1994, section 4A, p. 22, col. 3, Education Life Supp.
Introducing the EQ (Education Quotient), Expansion Management, Sept./Oct. 1991, pp. 18-24.
Investment in Education: The Equity-Efficiency Quandary (T. Schultz ed. 1972).
Johnson, The Private Sector Should Help U. S. Schools, Financier, Sept. 1991, p. 34.
Johnson & Stafford, Social Returns to Quantity and Quality of Schooling, 8 J. Human Resources 139 (1973).
W. Johnston & A. Packer, Workforce 2000: Work and Workers for the Twenty-first Century (1987).
Jorgenson, The Contribution of Education to U. S. Economic Growth, 1948-73, in Education and Economic Productivity 95 (E. Dean ed. 1984).
Kirkland, Are Service Jobs Good Jobs?, Fortune, June 10, 1985, p. 38.
J. Kozol, Illiterate America 13 (1985).
J. Kozol, Where Stands the Republic? Illiteracy: A Warning and a Challenge to the Nation’s Press 9 (1986).
M. Levin & A. Shank, Educational Investment in an Urban Society: Costs, Benefits, and Public Policy (1970).
Link & Ratledge, Social Returns to Quantity and Quality of Education: A Further Statement, 10 J. Human Resources 78 (1975).
Lyne, The Skills Gap: U. S. Work-Force Woes Complicate Business-Location Equation, Site Selection, Aug. 1992, p. 642.
MacCormack, Newman, & Rosenfield, The New Dynamics of Global Manufacturing Site Location, 35 Sloan Management Review, No. 4, p. 69 (1994) (MacCormack, Newman, & Rosenfield).
F. Machlup, Education and Economic Growth (1970).
Markey, The Labor Market Problems of Today’s High School Dropouts, Monthly Labor Review, June 1988, p. 36.
R. Marshall & M. Tucker, Thinking for a Living: Work, Skills, and the Future of the American Economy 33 (1992) (Marshall & Tucker).
Maturi, The Workforce Lure: Education/Training Carries More Weight in Siting Decisions, Industry Week, May 16, 1994, pp. 65-68 (Maturi).
M. Maurice, F. Sellier, & J. Silvestre, The Social Foundations of Industrial Power: A Comparison of France and Germany (1986).
Mikulecky, Job Literacy: The Relationship Between School Preparation and Workplace Actuality, 17 Reading Research Quarterly 400 (1982).
Mikulecky & Ehlinger, The Influence of Metacognitive Aspects of Literacy on Job Performance of Electronics Technicians, 18 J. Reading Behavior 41 (1986).
MIT Commission on Industrial Productivity, Education and Training in the United States: Developing the Human Resources We Need for Technological Advance and Competitiveness, in 2 Working Papers of the MIT Commission on Industrial Productivity (1989) (MIT).
Mitchell, The Impact of International Trade on U. S. Employment, in American Labor in a Changing World Economy 5 (W. Morehouse ed. 1978).
Morgan & Sirageldin, A Note on the Quality Dimension in Education, 76 J. Pol. Econ. 1069 (1968).
National Academy of Education, Economic Dimensions of Education (1979).
National Center on Education and the Economy, America’s Choice: High Skills or Low Wages! (1990) (National Center).
National Commission on Jobs and Small Business, Making America Work Again: Jobs, Small Business, and the International Challenge (1987).
National Governor’s Association, Making America Work 35-36, 77-96 (1987).
National Institute of Justice, Research in Brief, J. Toby, Violence in Schools 3 (Dec. 1983).
National School Safety Center, Weapons in Schools (May 1989).
Neef & Kask, Manufacturing Productivity and Labor Costs in 14 Economies, Monthly Labor Review, Dec. 1991, p. 24 (Neef & Kask).
Neff, Recharging U. S. Competitiveness: Perhaps We Should Use Germany’s Education System as a Benchmark, Industry Week, Jan. 20,1992, p. 21.
O’Connor, Education’s Significance as Quality-of-Life Location Factor Parallels Nationwide Reformist Movement, Site Selection Handbook, Aug. 1988, p. 846.
M. O’Donoghue, Economic Dimensions in Education (1971).
Organisation for Economic Co-operation and Development, Education and the Economy in a Changing Society (1989).
Overman, Skilled States Lure New Business, HRMagazine, Jan. 1994, pp. 61-62 (Overman).
Packer, Taking Action on the SCANS Report, Educational Leadership, Mar. 1992, p. 27.
R. Perlman, The Economics of Education: Conceptual Problems and Policy Issues (1973).
R. Price, Fighting Violence with All the Mushy Stuff,’ USA Today, May 9,1994, p. 9A.
D. Prothrow-Stith & M. Weissman, Deadly Consequences (1991).
M. Rasell & E. Appelbaum, Investment in Learning: An Assessment of the Economic Return (1992).
Ray & Mickelson, Corporate Leaders, Resistant Youth, and School Reform in Sunbelt City: The Political Economy of Education, 37 Social Problems 178 (1990).
R. Reich, The Work of Nations (1991).
D. Riddle, Service-Led Growth: The Role of the Service Sector in World Development (1986).
W. Rorabaugh, The Craft Apprentice: From Franklin to the Machine Age in America (1986) (Rorabaugh).
Rumberger & Daymont, The Economic Value of Academic and Vocational Training Acquired in High School, in Youth and the Labor Market 157 (M. Borus ed. 1984).
Ruttenberg, The Limited Promise of Public Health Methodologies to Prevent Youth Violence, 103 Yale L. J. 1885 (1994).
Ryscavage & Henle, Earnings Inequality Accelerates in the 1980’s, Monthly Labor Review, Dec. 1990, p. 3.
T. Schultz, Education and Productivity (report prepared for the National Commission on Productivity, 1971).
Schultz, Investment in Human Capital, American Economic Review, Mar. 1961, p. 3, reprinted in 1 Economics of Education 13 (M. Blaug ed. 1968) (Schultz (1961)).
S. Seninger, Labor Force Policies for Regional Economic Development: The Role of Employment and Training Programs (1989).
R. Seybolt, Apprenticeship & Apprenticeship Education in Colonial New England & New York (1917) (Seybolt).
Sheley, McGee, & Wright, Gun-Related Violence in and Around Inner-City Schools, 146 Am. J. Diseases in Children 677 (1992) (Sheley, McGee, & Wright).
Strane, Locating in Rural America Could be a Competitive Advantage, 12 Telemarketing, Oct. 1993, p. 92.
R. Sturm, How Do Education and Training Affect a Country’s Economic Performance? A Literature Survey (1993).
A Survey of The Global Economy, The Economist, Oct. 1, 1994, p. 37 (Survey of Global Economy).
Swaim & Podgursky, Do More-Educated Workers Fare Better Following Job Displacement?, Monthly Labor Review, Aug. 1989, p. 43.
Tremblay, The Impact of School and College Expenditures on the Wages of Southern and Non-Southern Workers, 7 J. Labor Research 201 (1986).
J. Vaizey, The Economics of Education (1973).
J. Vaizey, The Political Economy of Human Capital (1973).
Vallens, Global Economy May Dictate More Spending for Training, Modern Plastics, Nov. 1993, p. 19.
Wachtel, The Effect on Earnings of School and College Investment Expenditures, 58 Review of Economics & Statistics 326, 330 (1976).
Weiner & Siler, Trained to Order, Forbes, June 26, 1989, pp. 73-78.
L. Wheat, Urban Growth in the Nonmetropolitan South 65 (1976).
Wirth, Education and Work: The Choices We Face, Phi Delta Kappan, Jan. 1993, p. 361.
A. Wirth, Education and Work for the Year 2000 (1992).
L. Wise, Labor Market Policies and Employment Patterns in the United States 50 (1989).
Reference
- Cited By
- 3032 cases
- Status
- Published