The Commerce Clause, the Political Question Doctrine, and Morrison
Rotunda, Ronald D., Constitutional Commentary
The Supreme Court's ruling in United States v. Morrison (1)--which invalidated parts of the Violence Against Women Act on federalism grounds--is one of the most significant Commerce Clause decisions in recent years for several reasons.
First, the majority opinion illuminates and clarifies the Court's view of the scope of federal power under the Commerce Clause. The Court articulates, with a little more precision than before, the limits on what is "Commerce among the States." Morrison accepts broad federal power when Congress regulates activities (even noncommercial activities) that cross state lines or use the channels of interstate commerce. Thus, it signaled approval of the portions of the Violence Against Women Act that federalize "crimes committed against spouses or intimate partners during interstate travel," (2) and portions that regulate the "channels of interstate commerce--i.e., the use of the interstate transportation routes through which persons and goods move." (3)
But when Congress uses the aggregation theory--adding up or aggregating a series of individual acts that together "affect" commerce among the states, if the activity regulated neither crosses a state line nor uses a channel or instrumentality of interstate activity--then the activity must have a "commercial character." (4) It must affect "commerce." Morrison, in short, tells us that Congress may not aggregate a series of noncommercial actions (such as carrying a gun near a school) in order to reach the conclusion that those actions affect "commerce."
Second, Morrison undercuts the argument that the Court should abdicate its role in federalism cases on the grounds that states can protect themselves. (5) This argument is treated as irrelevant because the entire Morrison Court (both the majority (6) and the dissent (7)) recognized that the doctrine of enumerated powers and the principles of federalism are designed, for the most part, to protect individuals not the states. Even Justice Breyer's dissent in Morrison acknowledged that the purpose of federalism and the purpose of the doctrine of enumerated powers are to protect individual liberty:
No one denies the importance of the Constitution's federalist principles. Its state/federal division of authority protects liberty--both by restricting the burdens that government can impose from a distance and by facilitating citizen participation in government that is closer to home. (8)
Chief Justice Rehnquist, for the majority, agreed. The "Framers crafted the federal system of government so that the people's rights would be secured by the division of power." (9)
The Framers of our Constitution anticipated that a self-interested "federal majority" would consistently seek to impose more federal control over the people and the states. (10) Hence, they created a federal structure designed to protect freedom by dispersing and limiting federal power. They instituted federalism chiefly to protect individuals, that is, the people, not the "states qua states." (11)
The Framers sought to protect liberty by creating a central government of enumerated powers. They divided power between the state and federal governments, and they further divided power within the federal government by splitting it among the three branches of government, and they further divided the legislative power (the power that the Framers most feared) by splitting it between two Houses of Congress. (12)
Morrison is significant for a third reason--the rationale of Justice Souter's dissent, joined by Justices Stevens, Ginsburg, and Breyer. That sharply worded dissent is the focus of this analysis.
The four dissenters accused the Court of ignoring precedent--a charge that is hardly unusual for a dissent. However, what is noteworthy in this case is that it is the dissent itself that seeks to overturn a long line of precedent. …