Economic activity as a proxy for federalism: intuition and reason in United States v. Morrison.

• Author: Ides, Allan

The Violence Against Women Act of 1994 (VAWA) created a private right of action pursuant to the Commerce Clause and [section] 5 of the Fourteenth Amendment for victims of gender-based violence. Christy Brzonkala, a young woman who credibly charged that two members of her university's football team had raped her, brought suit against her assailants under VAWA after the university failed to provide her with redress. In United States v. Morrison, (1) the Supreme Court held that Congress lacked the power to create the civil remedy on which Ms. Brzonkala relied. The Court's Commerce Clause discussion emphasized the "non-economic" character of gender-based violence. In so doing, the Court ostensibly affirmed the constitutional significance of this factor in the context of the "substantially affects" test.

This essay examines the so-called "economic activity" element with an eye toward discovering its content and justification. In fact, as I will attempt to demonstrate below, this new doctrinal twist appears to have no independent content. It operates less as an explanation for the result than as a sleight of hand that distracts us from the core principle of the decision. The policy behind the emerging doctrine, therefore, is starkly instrumental, and premised more on ideology than it is on any explication of doctrine or reason.

When Captain Renault shut down Rick's Cafe Americain in the film "Casablanca," he announced, "I am shocked, shocked to find that gambling, is going on in here"--and then quickly pocketed his winnings. (2) Our shock in learning that something other than pure doctrine may have driven the decision in Morrison is similarly ironic. Ideology is, was, and always has been a part of the judicial process, and particularly so in the context of constitutional law. But even if we accept this reality, it does not follow that the judicial creation of constitutional law should be bounded by nothing other than the personal predilections of a majority of five. The fact that ideology is something doesn't mean it should be everything.

Ideally, a Supreme Court decision ought to reflect a careful accommodation of intuitive judgment and reasoned explanation. By "intuitive judgment" I mean the felt sense derived from personal and professional experience that the principle and its application are correct. If we must put a harder spin on the concept, we could call it passion, bias, or ideology. It certainly comes in all those flavors. What I am describing is a Justice's philosophic sense of right and wrong. I accept this not only as a harsh reality, but as a positive good. So, yes, ideology is a critical ingredient in the mix. But there must be a mix, and part of that mix is the check provided by some form of reasoned explanation. This connotes a relatively dispassionate examination of the intuition, an examination that transcends the intuition and tests it against a larger legal and societal framework. It requires the frank imposition of self-doubt on the initial judgment, a type of reality-check. Interwoven with these two elements is the application of doctrine, which at its best is a product of collective experience and applied reason. In a colloquial sense, we would like to say that the judgment in any particular case "feels right," as being within a reasonable range of options, and that the opinion in support of it has a well-reasoned, independent validity. We would also like to see some consistency between that opinion and the prior doctrine, unless a convincing reason is given for the departure from previously established norms. (3)

Admittedly, the line between intuition and reason is indistinct. Both ways of thinking form and inform one another, and either can easily operate as a mask for the other. It is also probably true that the power of intuition and ideology can overwhelm the check of reason, especially in the most highly charged and politically heated cases. (4) So, yes, the real world is not the ideal world, and our own judgment of these matters is always to some extent clouded. What should be clear, however, is that neither intuition nor reason, in isolation, will do. An insistence on pure logic both underestimates the critical role that nonlinear thinking plays in all human decision making and denies the real world implications of a decision. (5) This may be one of the reasons why strict originalism has never gained much of a foothold in the Court. It lacks the basic flesh of human experience. On the other hand, exclusive reliance on intuition simply transforms personal predilection into the law, and this is hardly a recipe for either justice or coherence. What we seek is not perfection, but a balance between the subjective and objective elements of decision.

Perhaps this middle ground between law as pure reason and law as personal preference does not exist. One's intuition, emotion, or ideology may inevitably control the ultimate conclusion reached. However, even if this observation is correct, the application of reason can provide "non-believers" a sufficient basis for accepting the legitimacy of a judgment with which they disagree. In essence, the reasoning process creates a shared lexicon that is capable of embracing and validating discordant views, and as such it creates a realm within which passionate minds can differ and in which a range of passionate but reasonable alternatives may peacefully coexist.

To return to the subject at hand, the immediate question is whether the decision in Morrison, and in particular the "economic activity" portion of that opinion, satisfies the above criteria. As I have suggested, I believe that it does not.

The Morrison Court's discussion of the Commerce Clause opens with a standard and relatively non-controversial description of the scope of the commerce power. Congress may regulate the channels or instrumentalities of interstate commerce, i.e., anything that either is interstate commerce or anything that is in interstate commerce, as well as certain matters that substantially affect interstate commerce. Since VAWA provided a remedy for conduct that was concededly not itself interstate commerce nor necessarily in interstate commerce, the statute had to rest on the "substantially affects" principle. More specifically, the question was whether gender-based violence substantially affected interstate commerce. Congress said it did. The Court said it did not.

In so ruling, the Court relied in part on the non-economic nature of gender-based violence. This should not have surprised anyone who had read United States v. Lopez. (6) In striking down the Gun Free School Zones Act, the Lopez Court emphasized what it perceived as the non-economic nature of the regulated activity, namely, the possession of a gun in a school zone. (7) Whether this non-economic status completely insulated the activity from congressional oversight under the commerce power was left ambiguous. Clearly, however, the non-economic characterization played a significant role in the Court's determination that a substantial relationship with interstate commerce was lacking.

In Morrison, the Court reiterated the significance of this new threshold consideration, noting that "a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case." (8) Applying this principle, the Court then concluded without elaboration (just as it had done with gun possession) that "[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity." (9) Again, as in Lopez, the Court was coy with respect to the dispositive nature of this factor. "While we need not adopt a categorical rule against aggregating the effects of any non-economic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature." (10) In other words, this factor is "central" but not necessarily dispositive, leaving the Court some doctrinal wiggle room while creating a relatively effective barrier to congressional regulation.

From a purely doctrinal perspective, the Court's reliance on "economic activity" as a factor limiting the scope of congressional power raises two legitimate questions. First, what does the Court mean by the phrase, "economic activity?" Next, why does the economic character of an activity matter if the question is one of substantial effects on interstate commerce? We will consider each question in turn. The answers may illuminate the intuitive judgment at the heart of Morrison and the Court's effort to rationalize the result.

ON DEFINING ECONOMIC ACTIVITY

As to the first question, the Court did not define economic activity in either Lopez or Morrison. Rather, the Court's conclusions regarding gun possession and gender-based violence rest on the judicial sense that there is really nothing to argue about regarding what the Court characterized as a pivotal issue. In the Court's view, no matter how broadly one defines "economic activity," neither gun possession in a school zone nor gender-based violence could possibly qualify. (11) This assumption, while clearly convenient and perhaps even appealing as a rhetorical device, is a bit of an overstatement. In what follows, I consider a variety definitions of "economic activity," to see which, if any, make doctrinal sense in the context of the Morrison Court's holding.

In his leading treatise on law and economics, Judge Richard A. Posner proposes the following definition of economics: "[E]conomics is the science of rational choice in a world--our world--in which resources are limited in relation to human wants." (12) Within this real world, individuals operate as rational maximizers of their own self-interest. Their activity in this regard is quintessentially economic. And while economic theory often favors voluntary transfers and market transactions, forced...