Herbert Packer Criminal Justice Analysis

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Herbert Packer Criminal Justice Analysis



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There are over , elementary and secondary schools in the United States. See U. Each of these now has an invisible federal zone extending 1, feet beyond the often irregular boundaries of the school property. In some communities no doubt it would be difficult to navigate without infringing on those zones. Yet throughout these areas, school officials would find their own programs for the prohibition of guns in danger of displacement by the federal authority unless the State chooses to enact a parallel rule. This is not a case where the etiquette of federalism has been violated by a formal command from the National Government directing the State to enact a certain policy, cf. FERC v. 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. The Court today properly concludes that the Commerce Clause does not grant Congress the authority to prohibit gun possession within 1, feet of a school, as it attempted to do in the Gun-Free School Zones Act of , Pub. 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 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. Chisholm v. Georgia, 2 Dall. 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. Government has nothing approaching a police power. Compare ante, at , with post, at 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 STEVENS, J. 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. 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 Dic-. This understanding finds support in the etymology of the word, which literally means "with merchandise. See The Federalist No. Jay asserting that countries will cultivate our friendship when our "trade" is prudently regulated by Federal Government ; 1 id. Hamilton discussing "competitions of commerce" between States resulting from state "regulations of trade" ; id.

Madison asserting that it was an "acknowledged object of the Convention Ford ed. 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. The same distinctions. Elliot ed. Dawes at Massachusetts convention ; id. Smith at New York convention. Moreover, interjecting a modern sense of commerce into the Constitution generates significant textual and structural problems.

For example, one cannot replace "commerce" with a different type of enterprise, such as manufacturing. When a manufacturer produces a car, assembly cannot take place "with a foreign nation" or "with the Indian Tribes. Agriculture and manufacturing involve the production of goods; commerce encompasses traffic in such articles. 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. 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 2 does not state that Congress may. 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. Although the precise line between. Clearly, the Framers could have drafted a Constitution that contained a "substantially affects interstate commerce" Clause had that been their objective. In addition to its powers under the Commerce Clause, Congress has the authority to enact such laws as are "necessary and proper" to carry into execution its power to regulate commerce among the several States. But on this Court's understanding of congressional power under these two Clauses, many of Congress' other enumerated powers under Art.

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. Likewise, Congress would not need the separate authority to establish post offices and post roads, cl. It might not even need the power to raise and support an Army and Navy, cls. Indeed, if Congress could regulate matters that substantially affect interstate commerce, there would have been no need to spec-. See infra, at As the Framers surely understood, these other branches of trade substantially affect interstate commerce. Put simply, much if not all of Art. An interpretation of cl. Yet this Court's Commerce Clause jurisprudence has endorsed just such an interpretation: The power we have accorded Congress has swallowed Art.

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. 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 pro hibited by the Constitution.

Taken together, these fundamental textual problems should, at the very least, convince us that the "substantial effects" test should be reexamined. For instance, Congress has plenary power over the District of Columbia and the territories. 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.

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. A Landholder No. Jensen ed. See also The Federalist No. Hamilton "[D]iscerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. Many of them indeed are immediately connected with the operations of commerce. They know that the merchant is their natural patron and friend" ; id. William Davie, a delegate to the North Carolina Convention, illustrated the close link best: "Commerce, sir, is the nurse of [agriculture and manufacturing].

The merchant furnishes the planter with such articles as he cannot manufacture himself, and finds him a market for his produce. Agriculture cannot flourish if commerce languishes; they are mutually dependent on each other. 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:.

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. 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? 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.

The comments of Hamilton and others about federal power reflected the well-known truth that the new Government would have only the limited and enumerated powers found in the Constitution. Hamilton at New York Convention noting that there would be just cause for rejecting the Constitution if it would enable the Federal Government to "alter, or abrogate Madison ; 3 Debates J. Madison Virginia Convention ; R. Ellsworth, Letter to Governor Huntington, Sept. Agriculture and manufacture, since they were not surrendered to the Federal Government, were state concerns.

Hamilton observing that the "internal encouragement of agriculture and manufactures" was an object of state expenditure. Even before the passage of the Tenth Amendment, it was apparent that Congress would possess only those powers "herein granted" by the rest of the Constitution. 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. Madison, for instance, spoke of the bankruptcy power as being "intimately connected with the regulation of commerce. 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.

In short, the Founding Fathers were well aware of what the principal dissent calls "'economic SEC, U. Even though the boundary between commerce and other matters may ignore "economic reality" and thus seem arbitrary or artificial to some, we must nevertheless respect a constitutional line that does not grant Congress power over all that substantially affects interstate commerce. 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. And, "with the exception of one wrong turn subsequently corrected," this has been the "traditiona[l]" method of interpreting the Commerce Clause.

Post, at citing Gibbons and United States v. In my view, the dissent is wrong about the holding and reasoning of Gibbons. Because this error leads the dissent to characterize the first years of this Court's case law as a "wrong turn," I feel compelled to put the last 50 years in proper perspective. 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 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 It was so understood, and must have been so understood, when the constitution was framed.

The Court also ob-. Because a portion of interstate commerce and foreign commerce would almost always take place within one or more States, federal power over interstate and foreign commerce necessarily would extend into the States. 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. Moreover, while suggesting that the Constitution might not permit States to regulate interstate or foreign commerce, the Court observed that "[i]nspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State" were but a small part "of that immense mass of legislation 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. See also Perez v. 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.

From this statement, the principal dissent infers that whenever an activity affects interstate commerce, it necessarily follows that Congress can regulate such activities. Of course, Chief Justice Marshall said no such thing and the inference the dissent makes cannot be drawn. 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:. In this passage, the Court merely was making the well understood point that the Constitution commits matters of "national" concern to Congress and leaves "local" matters to the States.

The Court was not saying that whatever Congress believes is a national matter becomes an object of federal control. The matters of national concern are enumerated in the Constitution: war, taxes, patents, and copyrights, uniform rules of naturalization and bankruptcy, types of commerce, and so on. See generally Art. Gibbons' emphatic statements that Congress could not regulate many matters that affect commerce confirm that the Court did not read the Commerce Clause as granting Congress control over matters that "affect the States generally.

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. Virginia, 6 Wheat. 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. Thus, whatever effect ordinary murders, or robbery, or gun possession might have on interstate commerce or on any. See Brown v. Maryland, 12 Wheat. Black Bird Creek Marsh Co.

Dewitt, 9 Wall. 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. 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. See also License Tax Cases, 5 Wall. See Act of Apr. 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.

When Congress did enact nationwide criminal laws, it acted pursuant to direct grants of authority found in the Constitution. Compare Act of Apr. 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. Raising echoes of the discussions of the Framers regarding the intimate relationship between commerce and manufacturing, the Court declared that "[c]ommerce succeeds to manufacture, and is not a part of it.

The Court also approvingly quoted from Kidd v. 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 Knight, supra, at If federal power extended to these types of production "comparatively little of business operations and affairs would be left for state control.

See also Newberry v. Without agriculture, manufacturing, mining, etc. Whether or not manufacturing, agriculture, or other matters substantially affected interstate commerce was irrelevant. As recently as , the Court continued to insist that the Commerce Clause did not reach the wholly internal business of the States. The Federal Government simply could not reach such subjects regardless of their effects on interstate commerce. These cases all establish a simple point: From the time of the ratification of the Constitution to the mid's, it was widely understood that the Constitution granted Congress only limited powers, notwithstanding the Commerce Clause. If anything, the "wrong turn" was the Court's dramatic departure in the 's from a century and a half of precedent.

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. Compare United States v. Coombs, 12 Pet. During this period, however, this Court never held that Congress could regulate everything that substantially affects commerce. When asked at oral argument if there were any limits to the Commerce Clause, the Government was at a loss for words.

Likewise, the principal dissent insists that there are limits, but it cannot muster even one example. Indeed, the dissent implicitly concedes that its reading has no limits when it criticizes the Court for "threaten[ing] legal uncertainty in an area of law that The one advantage of the dissent's standard is certainty: It is certain that under its analysis everything may be regulated under the guise of the Commerce Clause. The substantial effects test suffers from this flaw, in part, because of its "aggregation principle. See Maryland v. The aggregation principle is clever, but has no stopping point. Suppose all would agree that gun possession within 1, feet of a school does not substantially affect commerce, but that possession of weapons generally knives, brass knuckles, nunchakus, etc.

Under our substantial effects doctrine, even though Congress cannot single out gun possession, it can prohibit weapon possession generally. But one always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce. Under our jurisprudence, if Congress passed an omnibus "substantially affects interstate commerce" statute, purporting to regulate every aspect of human existence, the Act apparently would be constitutional. Even though particular sections may govern only trivial activities, the statute in the aggregate regulates matters that substantially affect commerce. 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.

Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean. New York, U. Unlike Lochner and our more recent "substantive due process" cases, today's decision enforces only the Constitution and not "judicial policy judgments. 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.

Madison asserting that if Congress exercises powers "not warranted by [the Constitution's] true meaning" the judiciary will defend the Constitution ; id. 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 , in enforcing the Constitution. Unless the dissenting Justices are willing to repudiate our long-held understanding of the limited nature of federal power, I would think that they, too, must be willing to reconsider the substantial effects test in a future case. If we wish to be true to a Constitution that does not cede a police power to the Federal Government, our Commerce Clause's boundaries simply cannot be "defined" as being "'commensurate with the national needs'" or self-consciously intended to let the Federal Government "'defend itself against economic forces that Congress decrees inimical or destructive of the national economy.

Such a formulation of federal power is no test at all: It is a blank check. At an appropriate juncture, I think we must modify our Commerce Clause jurisprudence. Today, it is easy enough to say that the Clause certainly does not empower Congress to ban gun possession within 1, feet of a school. The welfare of our future "Commerce with foreign N ations, and among the several States," U. Dolan v. City of Tigard, U. 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-. In my judgment, Congress' power to regulate commerce in firearms includes the power to prohibit possession of guns at any location because of their potentially harmful use; it necessarily follows that Congress may also prohibit their possession in particular markets. The market for the possession of handguns by school-age children is, distressingly, substantial. 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.

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. ICC, supra, at Times, Dec. A23, col. The practice of deferring to rationally based legislative judgments "is a paradigm of judicial restraint. Beach Communications, Inc.

In judicial review under the Commerce Clause, it reflects our respect for the institutional competence of the Congress on a subject expressly assigned to it by the Constitution and our appreciation of the legitimacy that comes from Congress's political accountability in dealing with matters open to a wide range of possible choices. Carolene Products Co. Williamson v. Lee Optical of Okla. 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. Notwithstanding the Court's recognition of a broad commerce power in Gibbons v. Although the Court upheld a fair amount of the ensuing legislation as being within the commerce power, see, e. 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.

Liggett Co. Baldridge, U. Kansas, U. See generally L. Tribe, American Consti-. The fulcrums of judicial review in these cases were the notions of liberty and property characteristic of laissez-faire economics, whereas the Commerce Clause cases turned on what was ostensibly a structural limit of federal power, but under each conception of judicial review the Court's character for the first third of the century showed itself in exacting judicial scrutiny of a legislature's choice of economic ends and of the legislative means selected to reach them. It was not merely coincidental, then, that sea changes in the Court's conceptions of its authority under the Due Process and Commerce Clauses occurred virtually together, in , with West Coast Hotel Co.

Parrish, U. 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. 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. In due process litigation, the Court's statement of a rational. Lee Optical Co. The moment came, however, with the challenge to congressional Commerce Clause authority to prohibit racial discrimination in places of public accommodation, when the Court simply made explicit what the earlier cases had implied: "where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.

Darby, supra; see Heart of Atlanta Motel, Inc. Thus, under commerce, as under due process, adoption of rational basis review expressed the recognition that the Court had no sustainable basis for subjecting economic regulation as such to judicial policy judgments, and for the past half century the Court has no more turned back in the direction of formalistic Commerce Clause review as in deciding whether regulation of commerce was sufficiently direct than it has inclined toward reasserting the substantive authority of Lochner due process as in the inflated protection of contractual autonomy.

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. 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. Once again, any appeal these considerations may have depends on ignoring the painful lesson learned in , for neither of the Court's suggestions would square with rational basis scrutiny. 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 mayor 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. Justice Harlan put it this way in speaking for the Court in Maryland v. As long ago as [], the Court put to rest the contention that state concerns might constitutionally 'outweigh' the importance of an otherwise valid federal statute regulating commerce. Darby, supra, at ; Gregory v. 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 , our understanding being that such prerogatives, through which "a State defines itself as a sovereign," are "powers with which Congress does not readily interfere," U.

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. These clear statement rules, however, are merely rules of statutory interpretation, to be relied upon only when the. Culbert, U. Ashcroft, supra, at ; United States v. Bass, supra, at , and in cases implicating Congress's historical reluctance to trench on state legislative prerogatives or to enter into spheres already occupied by the States, Gregory v.

Bass, supra, at ; see Rewis v. United States, supra, at They are rules for determining intent when legislation leaves intent subject to question. But our hesitance to presume that Congress has acted to alter the state-federal status quo when presented with a plausible alternative has no relevance whatever to the enquiry whether it has the commerce power to do so or to the standard of judicial review when Congress has definitely meant to exercise that power. Indeed, to allow our hesitance to affect the standard of review would inevitably degenerate into the sort of substantive policy review that the Court found indefensible 60 years ago. The Court does not assert and could not plausibly maintain that the commerce power is wholly devoid of congressional authority to speak on any subject of traditional state concern; but if congressional action is not forbidden absolutely when it touches such a subject, it will stand or fall depending on the Court's view of the strength of the legislation's commercial justification.

And here once again history raises its objections that the Court's previous essays in overriding congressional policy choices under the Commerce Clause were ultimately seen to suffer two fatal weaknesses: when dealing with Acts of Congress as distinct from state legislation subject to review under the theory of dormant commerce power nothing in the Clause compelled the judicial activism, and nothing about the judiciary as an institution made it a superior source of policy on the subject Congress dealt with.

There is no reason to expect the lesson would be different another time. There remain questions about legislative findings. The Court of Appeals expressed the view, 2 F. 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.

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. But while the ease of review may vary from case to case, it does not follow that the standard of review should vary, much less that explicit findings of fact would even directly address the standard. The question for the courts, as all agree, is not whether as a predicate to legislation Congress in fact found that a particular activity substantially affects interstate commerce. The legislation implies such a finding, and there is no reason to entertain claims that Congress acted ultra vires intentionally. Nor is the question whether Congress was correct in so finding. The only question is whether the legislative judgment is within the realm of reason.

See Hodel v. FCC v. Skrupa, U. 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.

But review for congressional wisdom would just be the old judicial pretension discredited and abandoned in , and review for deliberateness would be as patently unconstitutional as an Act of Congress mandating long opinions from this Court. Such a legislative process requirement would function merely as an excuse for covert review of the merits of legislation under standards never expressed and more or less arbitrarily applied. Under such a regime, in any case, the rationality standard of review would be a thing of the past. On the other hand, to say that courts applying the rationality standard may not defer to findings is not, of course, to say that findings are pointless.

They may, in fact, have great value in telling courts what to look for, in establishing at least one frame of reference for review, and in citing to factual authority. The research underlying JUSTICE BREYER'S dissent was necessarily a major undertaking; help is welcome, and it not incidentally shrinks the risk that judicial research will miss material scattered across the public domain or buried under pounds of legislative record. Congressional findings on a more particular plane than this record illustrates would accordingly have earned judicial thanks. But thanks do not carry the day as long as rational possibility is the touchstone, and I would not allow for the possibility, as the Court's opinion may, ante, at , that the addition of congressional findings could in principle have affected the fate of the statute here.

I would not argue otherwise, but I would raise a caveat. Not every epochal case has come in epochal trappings. But we know what happened. 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. 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.

In reaching this conclusion, I apply three basic principles of Commerce Clause interpretation. First, the power to "regulate Commerce As the majority points out, ante, at , the Court, in describing how much of an effect the Clause requires, sometimes has used the word "substantial" and sometimes has not. Compare, e. And, as the majority also recognizes in quoting Justice Cardozo, the question of degree how much effect requires an estimate of the "size" of the effect that no verbal formulation can capture with precision.

I use the word "significant" because the word "substantial" implies a somewhat narrower power than recent precedent suggests. But to speak of "substantial effect" rather than "significant effect" would make no difference in this case. Second, in determining whether a local activity will likely have a significant effect upon interstate commerce, a court must consider, not the effect of an individual act a single instance of gun possession , but rather the cumulative effect of all similar instances i.

As this Court put the matter almost 50 years ago:. American Crystal Sugar Co. 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. The traditional words "rational basis" capture this leeway. See Hodel, supra, at Thus, the specific question before us, as the Court recognizes, is not whether the "regulated activity sufficiently affected interstate commerce," but, rather, whether Congress could have had "a rational basis" for so concluding.

Ante, at emphasis added. I recognize that we must judge this matter independently. 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. 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. Turner Broadcasting System, Inc. FCC, U. It would seem particularly unfortunate to make the validity of.

Because Congress did make findings though not until after Lopez was prosecuted , doing so would appear to elevate form over substance. See Pub. In addition, despite the Court of Appeals' suggestion to the contrary, see 2 F. The statute does not interfere with the exercise of state or local authority. Muth, U. 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. Wyoming, U. 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 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"? United States, Numerous reports and studies-generated both inside and outside government-make clear that Congress could reasonably have found the empirical connection that its law, implicitly or explicitly, asserts. See Appendix, infra, at , for a sample of the documentation, as well as for complete citations to the sources referenced below.

For one thing, reports, hearings, and other readily available literature make clear that the problem of guns in and around schools is widespread and extremely serious. And, they report that this widespread violence in schools throughout the Nation significantly interferes with the quality of education in those schools. Based on reports such as these, Congress obviously could have thought that guns and learning are mutually exclusive. Congress could therefore have found a substantial educational problem-teachers unable to teach, students unable to learn-and concluded that guns near schools contribute substantially to the size and scope of that problem.

Having found that guns in schools significantly undermine the quality of education in our Nation's classrooms, Congress could also have found, given the effect of education upon interstate and foreign commerce, that gun-related violence in and around schools is a commercial, as well as a human, problem. Education, although far more than a matter of economics, has long been inextricably intertwined with the Nation's economy. When this Nation began, most workers received their education in the workplace, typically like Benjamin Franklin as apprentices.

See generally Seybolt; Rorabaugh; U. As late as the 's, many workers still received general education directly from their employers-from large corporations, such as General Electric, Ford, and Goodyear, which created schools within their firms to help both the worker and the firm. See Bolino Throughout most of the 19th century fewer than one percent of all Americans received secondary education through attending a high school. As public school enrollment grew in the early 20th century, see Becker , the need for industry to teach basic educational skills diminished. But, the direct economic link between basic education and industrial productivity remained. Scholars estimate that nearly a quarter of America's economic growth in the early years of this century is traceable directly to increased schooling, see Denison ; that investment in "human capital" through spending on education exceeded investment in "physical capital" by a ratio of almost two to one, see Schultz 26 ; and that the economic returns to this investment in education exceeded the returns to conventional capital investment, see, e.

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. 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 and , and more than 70 percent of American-made goods now compete with imports. 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. 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. 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.

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 "[m]odern machinery and production methods can therefore be combined with low wage workers to drive costs down," ibid. 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 , that 88 percent think this kind of involvement is important, id. 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. That is to say, guns in the hands of six percent of inner-city high school students and gun-related violence throughout a city's schools must threaten the trade and commerce that those schools support. The only question, then, is whether the latter threat is to use the majority's terminology "substantial. 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.

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. NLRB, U. As I have pointed out, supra, at , 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.

The violence-related facts, the educa-. And, because under our case law, see supra, at ; infra, at , the sufficiency of the constitutionally necessary Commerce Clause link between a crime of violence and interstate commerce turns simply upon size or degree, those same facts make the statute constitutional. To hold this statute constitutional is not to "obliterate" the "distinction between what is national and what is local," ante, at 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 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. This Court has previously recognized the singularly disruptive potential on interstate commerce that acts of violence may have. See Perez, supra, at Second, the immediacy of the connection between education and the national economic wellbeing is documented by scholars and accepted by society at large in a way and to a degree that may not hold true for other social institutions.

It must surely be the rare case, then, that a statute strikes at conduct that when considered in the abstract seems so removed from commerce, but which practically speaking has so significant an impact upon commerce. In sum, a holding that the particular statute before us falls within the commerce power would not expand the scope of that Clause. Rather, it simply would apply pre-existing law to changing economic circumstances. See Heart of Atlanta. Motel, Inc. It would recognize that, in today's economic world, gun-related violence near the classroom makes a significant difference to our economic, as well as our social, well-being. In accordance with well-accepted precedent, such a holding would permit Congress "to act in terms of economic 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 intrastate, 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.

The negative impact upon the national economy of an inability to teach basic skills seems no smaller nor less significant than that of organized crime. In Katzenbach v. In Daniel v. 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 ; Daniel, supra, at , n. From to it fell from Despite the reduction in numbers the Christian population of Chatteris is above the average for England and Wales at A church has been on the site since at least , although the current tower dates from The building had fallen into disrepair during the 19th century, and the majority of the building is the result of an intensive restoration in This included restoring a pitched roof and adding new aisles, although the nave arches are original.

Several former chapel buildings exist around the town. The majority of the population of Chatteris was born within the UK. The town has two primary schools , Kingsfield Primary School created in by the amalgamation of the former Burnsfield School and King Edward School [67] and Glebelands School, which opened in the early months of It was founded in Fen skating was very popular in the past.

An illustration from by George Cruikshank shows the Wisbech coach in the background of a skating match. The club has five senior teams and four youth teams that compete in both the Fenland and Cambridgeshire leagues. Chatteris Airfield is about 2 kilometres 1. A flying school is also based at the airfield. The town has one swimming pool, the Empress, which is privately owned and is a registered charity run by three trustees. It is open to members and can be booked for private hires or group sessions. Proposals for the development of Cromwell Community College under the government's BSF programme include significant leisure provisions and these are expected to start in The town is noted for its annual display of Christmas lights , which are entirely funded by community donations and have been featured on BBC Look East.

The town has a museum run by volunteers, with several permanent exhibitions about local history, the Fens, Victoriana and the railways. Chatteris has morning and evening Women's Institutes , which both meet at the King Edward Centre, [94] and a Rotary Club which meet at the local fire station. Since Chatteris has a branch of the University of the Third Age U3A which caters for people no longer in full time employment, with a talk every month at the general meeting held at the King Edward Centre, plus over 20 interest groups of various kinds, and a number of trips and theatre visits are also provided during the year.

Chatteris in Bloom is a charity responsible for entering the town in to the annual " Anglia in Bloom " competition. The town has a brass band , founded in , which competes in the East Anglian Brass Band Association. Trevor Bevis A pocket guide to The Fenland. T Bevis. ISBN From Wikipedia, the free encyclopedia. Human settlement in England. Location within Cambridgeshire. North East Cambridgeshire. See also: History of Cambridgeshire. Liber Eliensis. Translated by Fairweather, Janet. Woodbridge, UK: Boydell Press. ISBN , p. Victoria County History. Witchford and Wisbech Hundreds , pp. URL accessed 8 September Cartography by Tele Atlas. Retrieved 6 September Gdns Station ". Retrieved 12 March Met Office.

Chatteris Community Archive Network. Wisbech Standard. BBC News. Retrieved 19 September Cambs Times. Retrieved 7 January The Research Group. National Heritage List for England. Retrieved 2 February Catholic Church in March. Retrieved 18 April Peterborough Evening Telegraph. Retrieved 14 July Retrieved 18 August Anglia in Bloom. Retrieved 10 September Wareham and A.

M Wright Retrieved 13 February

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