CITES BY TOPIC:  private conduct
City of Boerne v. Florez, Archbishop of San Antonio, 521 U.S. 507 (1997)

The remedial and preventive nature of Congress' enforcement power, and the limitation inherent in the power, were confirmed in our earliest cases on the Fourteenth Amendment. In the Civil Rights Cases, 109 U.S. 3 (1883), the Court invalidated sections of the Civil Rights Act of 1875 which prescribed criminal penalties for denying to any person "the full enjoyment of" public accommodations and conveyances, on the grounds that it exceeded Congress' power by seeking to regulate private conduct. The Enforcement Clause, the Court said, did not authorize Congress to pass "general legislation upon the rights of the citizen, but corrective legislation; that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing . . . ." Id., at 13-14. The power to "legislate generally upon" life, liberty, and property, as opposed to the "power to provide modes of redress" against offensive state action, was "repugnant" to the Constitution. Id., at 15. See also United States v. Reese, 92 U.S. 214, 218 (1876); United States v. Harris, 106 U.S. 629, 639 (1883); James v. Bowman, 190 U.S. 127, 139 (1903). Although the specific holdings of these early cases might have been superseded or modified, see, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); United States v. Guest, 383 U.S. 745 (1966), their treatment of Congress' 5 power as corrective or preventive, not definitional, has not been questioned.

[City of Boerne v. Florez, Archbishop of San Antonio, 521 U.S. 507 (1997)]


Morse v. Republican Party of Virginia, 517 U.S. 186 (1996)

The Party's selection of a candidate at the convention does not satisfy that test. As we stated in Flagg Bros., Inc. v. Brooks, "the Constitution protects private rights of association and advocacy with regard to the election of public officials" and it is only "the conduct of the elections themselves [that] is an exclusively public function." 436 U.S., at 158 (citing Terry). Thus, we have carefully distinguished the "conduct" of an election by the State from the exercise of private political rights within that state-created framework. Providing an orderly and fair process for the selection of public officers is a classic exclusive state function. As the Constitution itself evidences, the organization of the electoral process has been carried out by States since the founding: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in [ MORSE v. REPUBLICAN PARTY OF VIRGINIA, ___ U.S. ___ (1996) , 22] each State by the Legislature thereof." U.S. Const., Art. I, 4, cl. 1

[Morse v. Republican Party of Virginia, 517 U.S. 186 (1996)]


United States v. Lopez, 514 U.S. 549 (1995)

The comments of Hamilton and others about federal power reflected the well-known truth that the new Government would have only the limited and enumerated powers found in the Constitution. See, e.g., 2 Debates 267-268 (A. Hamilton at New York convention) (noting [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995) , 10] that there would be just cause for rejecting the Constitution if it would enable the Federal Government to "alter, or abrogate . . . [a state's] civil and criminal institutions [or] penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals"); The Federalist No. 45, at 313 (J. Madison); 3 Debates 259 (J. Madison) (Virginia convention); R. Sherman & O. Ellsworth, Letter to Governor Huntington, Sept. 26, 1787, in 3 Documentary History 352; J. Wilson, Speech in the State House Yard, Oct. 6, 1787, in 2 id., at 167-168. Agriculture and manufacture, since they were not surrendered to the Federal Government, were state concerns. See The Federalist No. 34, at 212-213 (A. Hamilton) (observing that the "internal encouragement of agriculture and manufactures" was an object of state expenditure). Even before the passage of the Tenth Amendment, it was apparent that Congress would possess only those powers "herein granted" by the rest of the Constitution. U.S. Const., Art. I, 1.

Where the Constitution was meant to grant federal authority over an activity substantially affecting interstate commerce, the Constitution contains an enumerated power over that particular activity. Indeed, the Framers knew that many of the other enumerated powers in 8 dealt with matters that substantially affected interstate commerce. Madison, for instance, spoke of the bankruptcy power as being "intimately connected with the regulation of commerce." The Federalist No. 42, at 287. Likewise, Hamilton urged that "[i]f we mean to be a commercial people or even to be secure on our Atlantic side, we must endeavour as soon as possible to have a navy." Id., No. 24, at 157 (A. Hamilton).

In short, the Founding Fathers were well aware of what the principal dissent calls "`economic . . . realities.'" See post, at 11-12 (BREYER, J.) (citing North American Co. v. SEC, 327 U.S. 686, 705 (1946)). Even though the boundary between commerce and other matters may [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995) , 11] 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.

[United States v. Lopez, 514 U.S. 549 (1995)]