concurring:
As this century draws to a close, it seems appropriate to examine the course of its ju*890risprudence and the place of this case within it. The decision before us is an especially difficult one because it pits the obligation to preserve the values of our federal system against the imperative of judicial restraint.
I agree that section 13981 of the Violence Against Women Act exceeds the authority of Congress under both the Commerce Clause and Section 5 of the Fourteenth Amendment. Our ruling reaffirms the fundamental principle that our national government is one of enumerated — and therefore limited — powers. See, e.g., United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).
Nonetheless, it is a grave judicial act to nullify a product of the democratic process. The hard question is whether our decision constitutes an indefensible example of contemporary judicial activism or a legitimate exercise in constitutional interpretation. Respect for the institutions of self-government requires us, in all but the rarest of cases, to defer to the actions of legislative bodies. In particular, “[t]he history of the judicial struggle to interpret the Commerce Clause ... counsels great restraint before [we] determine[ ] that the Clause is insufficient to support an exercise of the national power.” Lopez, 514 U.S. at 568, 115 S.Ct. 1624 (Kennedy, J., concurring). I would add to that cautionary tale not only the judiciary’s parallel experience with economic due process but also the activist legacy of the Warren and early Burger Courts. By considering today’s decision in light of history’s often cold assessment of the product of those prior eras, we may ascertain whether we forsake to our peril the high ground of judicial restraint.
I.
A.
Judicial activism in this century falls into three general stages. The first, beginning roughly with the decision in Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), and continuing through the early New Deal, has come to symbolize judicial activism taken to excess. The Lochner decision remains the foremost reproach to the activist impulse in federal judges. And the Lochner era is still widely disparaged for its mobilization of personal judicial preference in opposition to state and federal social welfare legislation. In a series of decisions, the Supreme Court pressed the doctrine of “liberty of contract” against state and federal laws protecting union members, see Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441 (1915); Adair v. United States, 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436 (1908), and laws prescribing minimum wages for women and children, see Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 56 S.Ct. 918, 80 L.Ed. 1347 (1936); Adkins v. Children’s Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 (1923). Even though the Court during the same period upheld several maximum-hours provisions, see Bunting v. Oregon, 243 U.S. 426, 37 S.Ct. 435, 61 L.Ed. 830 (1917); Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908); Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780 (1898), as well as other labor legislation, see, e.g., Chicago, B. & Q. R.R. Co. v. McGuire, 219 U.S. 549, 31 S.Ct. 259, 55 L.Ed. 328 (1911), contemporary critics assailed the Court for indulging its “judicial sense of what was good for the business community” and ignoring the plight of the common citizen. Robert H. Jackson, The Struggle for Judicial Supremacy 164 (1941); see also Morehead, 298 U.S. at 619, 56 S.Ct. 918 (Hughes, C.J., dissenting). The irreconcilability of such cases as Lochner and Adkins on one side and Holden and Bunting on the other fostered the impression of a Court that was picking and choosing without principle, on occasion voiding legislative acts “simply because they [were] passed to carry out economic views which the Court believe[d] to be unwise or unsound,” Adkins, 261 U.S. at 562, 43 S.Ct. 394 (Taft, C.J., dissenting).
Then, as now, the scope of the commerce power was a major battleground. The New Deal Court used the Commerce Clause to rein in the expanding scope of federal eco-' nomic legislation. These cases protected the authority of the states vis-a-vis the federal government, rather than restricting government action entirely. Nonetheless, doctrinal inconsistency again lent fuel to those who charged the Supreme Court with favoring the corporate class. Compare Hammer v. Dagenhart, 247 U.S. 251, 38 S.Ct. 529, 62 L.Ed. 1101 (1918) (Congress may not bar goods made with child labor from the chan-*891neis of interstate commerce), with, e.g., Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523 (1913) (Congress may keep channels of commerce free of transportation for prostitution). These results suggested-to many that the Court’s line-drawing was not truly constitutional, but that it simply reflected opposition to “[t]he fundamental consideration ... that industry should take care of its human wastage.” Railroad Retirement Bd. v. Alton R.R. Co., 295 U.S. 330, 384, 55 S.Ct. 758, 79 L.Ed. 1468 (1935) (Hughes, C.J., dissenting).
Moreover, the shadows cast by such aggressive Commerce Clause decisions as Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1936) (striking the Bituminous Coal Conservation Act of 1935), A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935) (striking the National Industrial Recovery Act as applied), and Alton Railroad Co., 295 U.S. 330, 55 S.Ct. 758, 79 L.Ed. 1468 (striking the Railroad Retirement Act), obscured earlier cases in which the Court upheld expansive federal regulation, see, e.g., Texas & N.O.R.R. Co. v. Brotherhood of Ry. & S.S. Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034 (1930) (Railway Labor Act); Stafford v. Wallace, 258 U.S. 495, 42 S.Ct. 397, 66 L.Ed. 735 (1922) (Packers and Stockyards Act); Southern Ry. Co. v. United States, 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (1911) (Safety Appliance Act). Narrow interpretations of the taxing and spending powers in United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477 (1936) (striking provisions of the Agricultural Adjustment Act), and the Child Labor Tax Case, 259 U.S. 20, 42 S.Ct. 449, 66 L.Ed. 817 (1922) (striking the Child Labor Tax Law), solidified the image of an obstructionist Supreme Court, determined to impede legislative efforts to reverse the era’s economic dysfunction and to ease the human suffering that it had wrought.
The century’s first era of judicial activism proved a painful experience for the courts, as well as for the nation. Battered by court packing proposals and chastened by a wholesale change in personnel, the Court eventually abandoned the business of reviewing state and federal regulation of economic activity. See, e.g., Wickard v. Filburn, 317 U.S. 111, 129, 63 S.Ct. 82, 87 L.Ed. 122 (1942); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937). Indeed, the reaction to the Court’s early excesses was so strong that many supposed for a time that limits on the commerce power had become non-existent. See, e.g., Gerald Gunther & Kathleen M. Sullivan, Constitutional Law 198 (13th ed. 1997) (“In the wake of Wickard ... it was difficult indeed to articulate any limits on the reach of the commerce power.”). And the Lochner specter of result-oriented activism still haunts the Court’s debates today. See Lopez, 514 U.S. at 608, 115 S.Ct. 1624 (Souter, J., dissenting) (“[I]t 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.”).
B.
The century’s second era of judicial activism was more social than economic in nature. The post-war civil rights movement pursued a strategy of litigation to correct the abuses blacks suffered in every aspect of their civic experience. Seeking to emulate the movement’s success, more and more citizens turned to the courts to vindicate a wide variety of individual liberties. Unlike the first era, which sought at least in part to protect the states against the encroachments of the federal legislature, the eases of this second era uniformly restricted the states’ authority. The Court accomplished this in two ways. In some cases it incorporated the Bill of Rights against the states through the Fourteenth Amendment’s Due Process Clause. See, e.g., Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). In other instances it formulated new rights from the Bill of Rights, see, e.g., Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and the Fourteenth Amendment, see, e.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).
The verdict on this second activist era has been more mixed than the verdict on the first. Four of the most widely accepted decisions of the era imposed broad restrictions on the states. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (requiring states to apportion their *892legislatures according to population); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (requiring states to recognize malice as an element of libel actions); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (requiring states to furnish legal representation in criminal cases); Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (requiring states to end public school segregation). Unlike the most notable decisions of the first activist era, these four opinions have become judicial landmarks, and their position in the pantheon of our jurisprudence is secure.
In many contexts, however, the institutional stresses brought on by the era’s most expansive and entangling decisions forced the Court to reverse course. Some decisions overextended the institutional capacity of the federal courts, installing judges as long-term supervisors of basic state functions. After approving district courts’ broad equitable discretion to devise wide-ranging school desegregation plans, see Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), the Court constrained district judges from extending those plans beyond the school district in which the constitutional violation occurred, see Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974). And the rale that state prisoners could avail themselves of federal habeas corpus even if they failed to observe state procedures, see Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), gave way to the requirement that defendants show “cause and prejudice” for procedural default, see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The Court likewise had to cabin its efforts to examine state administrative procedures case-by-case, see Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), reducing such inquiry to only those cases involving “liberty” and “property” interests, see Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In the midst of this erá the Justices themselves engaged in the ad hoc review of state court obscenity rulings, see, e.g., Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967) (per curiam), until they finally cast off “the role of an unreviewable board of censorship for the 50 States” by making obscenity more a jury question, Miller v. California, 413 U.S. 15, 22 n. 3, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Other constitutional rulings were simply ridden too far, and the Court eventually had to rein them in. For example, the Court declined to apply the testimonial bar of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to impeaching evidence, see Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).
The Warren and early Burger Courts focused on finding new substantive rights in the Constitution and down played that document’s structural mandates. Although many of its individual decisions were overdue and salutary, when the era is considered as a whole, the states were relegated to a second-class constitutional status. As states themselves began to respect the civil rights of all their citizens, however, the justification for additional restrictions began to wear thin. And because “the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union,” Gregory v. Ashcroft, 501 U.S. 452, 457, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (quoting Texas v. White, 74 U.S. (7 Wall.) 700, 725, 19 L.Ed. 227 (1868)), this second era of activism presaged — and indeed guaranteed — a cyclical correction.
C.
This century’s third and final era of judicial activism probably began with New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), in which the Supreme Court held that the “take title” provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985 im-permissibly coerced the states into passing legislation. Since that time, the Court has issued a spate of decisions striking federal enactments that exceeded Congress’ authority at the expense of the states. See Printz v. United States, 521 U.S. 98, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997) (striking the interim background check provision of the Brady Handgun Violence Prevention Act); City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. *8932157, 138 L.Ed.2d 624 (1997) (striking the Religious Freedom Restoration Act of 1993); Lopez, 514 U.S. 549, 115 S.Ct. 1624 (1995)(striking the Gun Free School Zones Act of 1990); see also Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (invalidating Congress’ attempt under the Indian Commerce Clause to abrogate the states’ Eleventh Amendment immunity).
The common thread of contemporary activism is an interest in reviving the structural guarantees of dual sovereignty. For instance, Congress may not stretch the commerce power so far as to regulate noncommercial areas of traditional state concern— activity that “has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Lopez, 514 U.S. at 561, 115 S.Ct. 1624. Nor may Congress “define its own powers by altering the Fourteenth Amendment’s meaning.” City of Boerne, 117 S.Ct. at 2168. The Court has preserved the states’ immunity in federal court, defending their right not to be sued without consent. See Seminole Tribe, 517 U.S. 44, 116 S.Ct. 1114. It has enforced the “etiquette of federalism,” Lopez, 514 U.S. at 583, 115 S.Ct. 1624 (Kennedy, J., concurring), barring Congress from “commandee[ring] the legislative processes of the States,” New York, 505 U.S. at 161, 112 S.Ct. 2408 (internal quotation marks omitted), and forbidding the national government from “impress[ing] the state executive into its service” by “command[ing] the States’ officers ... to administer or enforce a federal regulatory program.” Printz, 117 S.Ct. at 2371, 2384.
Taken as a whole, the decisions preserve Congress as an institution of broad but enumerated powers, and the states as entities having residual sovereign rights.
II.
As abbreviated as the preceding discussion is, it will suffice to pose the critical question. Will the current era of judicial scrutiny stand the tests of time and public acceptance any better than the prior eras have? The facial similarities between the present jurisprudence and the New Deal era underscore the dilemma. Yet upon closer scrutiny, the current wave of judicial decisions bears little relation to those which crested early in this century. If one remains attentive to the pitfalls of the past, the present jurisprudence holds the promise to be an enduring and constructive one, for its aims and means differ significantly from those of prior eras.
A.
As an initial matter, the outcomes of the current era have not consistently favored a particular constituency. In the first era of activism, courts were widely perceived as choosing sides with business interests in the political debate over the expansion of federal and state regulatory power and the abandonment of laissez-faire. During this time, all of the Supreme Court’s cases limiting the scope of the enumerated powers led to results that were favorable to the commercial class. See, e.g., Carter, 298 U.S. 238, 56 S.Ct. 855 (1936) (voiding pro-labor provision); Hammer, 247 U.S. 251, 38 S.Ct. 529 (1918) (voiding child labor provision). Moreover, the barricade of substantive due process thwarted social and economic advancements drafted not just by Congress, but by state governments as well. See, e.g., Morehead, 298 U.S. 587, 56 S.Ct. 918 (1936) (rejecting state minimum wage-law); Adkins, 261 U.S. 525, 43 S.Ct. 394 (1923) (rejecting federal minimum wage law);Lochner, 198 U.S. 45, 25 S.Ct. 539 (1905) (rejecting state maximum hours law). Given this drumbeat of “pro-business” outcomes, critics were able to assemble a solid case that the court was promoting — in a political fashion — the interests of business at the expense of the interests of workingmen and women.
By contrast, the cases of the present era cannot be seen as single-mindedly promoting the interests of a particular constituency. Unlike the cases of the first era, the decisions of the third era display no pattern of favoritism. In fact, the results are unfavorable to a variety of interests. See New York, 505 U.S. 144, 112 S.Ct. 2408 (1992) (striking down radioactive waste disposal law); Lopez, 514 U.S. 549, 115 S.Ct. 1624 (1995) (striking down criminal law penalizing gun possession); Seminole Tribe, 517 U.S. 44, 116 S.Ct. 1114 (1996) (barring suits against unconsent-ing states authorized by Indian Gaming Regulatory Act); Printz, 117 S.Ct. 2365 (1997) *894(striking down law requiring local law enforcement officials to administer federal regulatory scheme); City of Boerne, 117 S.Ct. 2157 (1997) (striking down act aiming to protect the free exercise of religion). As a matter of oxen, the gored are determined by infringements upon our federal system, not by judicial disdain for enacted policies.
Additionally, the cases of the current era arise out of disparate factual contexts, not simply out of repetitious clashes between business and labor interests. The first era’s repeated parade of business-labor disputes solidified the perception that the Court was politically hostile to social welfare legislation. To be sure, the current cases present the customary array of amicus briefs advancing the positions of a variety of interest groups. But the identity and alignment of those groups varies, foreclosing the possibility that the judiciary will be seen as politically choosing sides in a single epic struggle. In the present period,the preservation of federalism values — not the maintenance of laissez faire — -is the binding principle. Interestingly, even the states have occasionally aligned themselves on different sides of federalism issues, sometimes taking positions in derogation of their own sovereign power. See New York, 505 U.S. at 154, 112 S.Ct. 2408 (noting that three states intervened as defendants in support of the take-title provision); Brief of 13 States, Amici Curiae, in Support of Respondent, Printz, 117 S.Ct. at 2365 (1997) (No. 95-1478) (supporting enlistment of local officials to conduct background cheeks).
B.
The nature of textual interpretation in the third era also differs from the prior two. The courts of the first era gave an exceedingly narrow definition to the term “commerce,” unduly restricting congressional power. By distinguishing commerce from manufacturing, production, and mining, see, e.g., Carter, 298 U.S. 238, 56 S.Ct. 855 (1936) (mining is not commerce); United States v. E.C. Knight Co., 156 U.S. 1, 15 S.Ct. 249, 39 L.Ed. 325 (1895) (manufacturing is not commerce), and by separating economic activities that directly affect interstate commerce from those that have only indirect effects, see, e.g., Schechter Poultry, 295 U.S. at 544-50, 55 S.Ct. 837 (wage and hour regulations lack direct relation to interstate commerce), the Supreme Court removed even the plainly economic activities of mines, manufacturing plants, railroads, and merchants from the sphere of regulable “commerce.”
The current era of judicial scrutiny does not face this same fundamental textual problem. Courts are not motivated by a desire that a particular substantive meaning be given to a constitutional term such as commerce, but instead by the duty to find that some meaning must exist. The question now is not what the proper allocation of economic regulatory power ought to be, but whether the states will have any subjects of social welfare to call their own. The collapse of the first era’s artificial distinctions dictates the third era’s interpretive caution. The cases of the third era have not sought to characterize business and economic activity as something other than commerce. Modern courts instead have taken a minimalist approach, withholding only the narrowest of subjects from the ambit of the “commerce” power.
Identifying the connection between commerce and the traditional, noneconomic state concerns addressed by section 13981, however, would require the courts to “pile inference upon inference,” in the end sanctioning a commerce power without any limitations. Lopez, 514 U.S. at 567, 115 S.Ct. 1624. Although the appellants have presented able arguments in support of section 13981, the Commerce Clause must contain some limitations if its language is not to be completely excised from the Constitution. The choice we face is between minimal invalidation of congressional intrusion and complete abdication of our interpretive duty. To choose the latter would be to depart from the judicial role of constitutional arbiter set forth nearly two centuries ago in Marbury v. Madison, 5 U.S. (1 Crunch) 137, 2 L.Ed. 60 (1803).
The search for meaning in textual provisions is common to all three judicial eras. And the real challenge to courts is to refrain from being textually selective. Yet, in reviewing the second and third eras, it is hard to understand how one can argue for giving capacious meanings to some constitutional provisions while reading others out of the document entirely. Here, appellants suggest *895that we give a reading that would rob all meaning from the phrase “Commerce ... among the several States,” giving Congress a blanket power simply “To regulate.” It seems patently inconsistent to argue for a Due Process Clause that means a great deal and a Commerce Clause that means nothing. How one clause can be robust and the other anemic is a mystery when both clauses, after all, are part of our Constitution.
The Supreme Court affirmed in Lopez the notion that “commerce” must mean something short of everything. See 514 U.S. at 567, 115 S.Ct. 1624 (noting that to uphold statute at issue “would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated”). This is not a radical principle. Rather than lashing out to greatly confine national power, the judiciary is proceeding, cautiously, to find a limiting principle at the margin. The Lopez limit on congressional power is not a strict one, but it is a limit.
C.
Finally, our role in this modern era is not as substantive adjudicators, but as structural referees. The due process decisions of the Lochner and Warren Court eras, as well as the individual rights rulings of the latter, attempted to remove the subject matter of those cases from political debate altogether. Those decisions prevented the people from seeking resolutions of their differences through their popularly elected representatives — federal and state. By contrast, the present jurisprudence of federalism is purely allocative, standing for the simple proposition that the Constitution does not cast states as mere marionettes of the central government. This jurisprudence removes no substantive decision from the stage of political debate. 'Nor does this decision command those seeking to protect the rights of women to exit the arena. States remain free after New York to reach regional solutions to their hazardous waste problems, after Lopez to criminalize the act of bringing a firearm within a school zone, after Pnntz voluntarily to cooperate with federal law enforcement efforts, and after today’s decision to provide civil remedies to women who are battered or raped. No court blocks the path of legislative initiative in any of these substantive areas.
Instead of aggressively pursuing substantive preferences, this court validates a structural principle found throughout the Constitution. See U.S. Const. art. I, § 8 (enumerating congressional powers); id. art. I, § 10 (limiting powers of the states); id. art: TV, § 4 (guaranteeing states a republican form of government); id. art. V (incorporating states and Congress into the amendment process); id. art. VI (making federal law supreme); id. amend. X (reserving to states powers not delegated); id. amend. XI (making states immune to suit in federal court). Federalism is the shining gem cut by the Founders. It remains the chief contribution of America to democratic theory and the structural guarantor of liberty and diversity for the American people. See Lopez, 514 U.S. at 575-76, 115 S.Ct. 1624 (Kennedy, J., concurring).
The role of the judiciary as a structural referee remains essential to the continued vitality of our federal system. See id. at 578, 115 S.Ct. 1624 (Kennedy, J., concurring) (“[T]he 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.”). Courts have long adjusted the structural balance of power in our federal system “through judicial exposition of doctrines such as abstention, the rules for determining the primacy of state law, the doctrine of adequate and independent state grounds, the whole jurisprudence of pre-emption, and many of the rules governing our habeas jurisprudence.” Id. (citations omitted). They have also commonly policed the structural lines inherent in the separation of powers. See, e.g., Clinton v. City of New York, 524 U.S, 417, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998); INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Marbury, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60. In so doing, courts have vindicated a simple, foundational principle: The federal government is one of limited powers not because it chooses to be, but because the Constitution makes that choice for it.
*896The judicial role in the structural questions of governance is a time-honored one. When Justice Black and Justice Harlan debated the incorporation of the Bill of Rights against the states through the Fourteenth Amendment, great structural principles were at stake. See, e.g., Malloy, 378 U.S. at 14-33, 84 S.Ct. 1489 (Harlan, J., dissenting); Adamson v. California, 332 U.S. 46, 68-92, 67 S.Ct. 1672, 91 L.Ed. 1903 (1947) (Black, J., dissenting). Whether one agreed with Justice Black or Justice Harlan, no one doubted that the structural question of incorporation was a legitimate debate for the Court. Those who would call the modern era an illegitimate, activist one too easily forget this tradition. They would have it both ways — approving wholly of incorporation and then chastising the courts for passing on the meaning of the enumerated powers. But it is important to remind ourselves of the principle underlying the incorporation debate: The judiciary rightly resolves structural disputes. Just as the relationship of the Bill of Rights to the Fourteenth Amendment was a legitimate structural question for the Court, so too is the debate over the relationship of Article I, Section 8 to the Tenth Amendment. It is just as important for the federal government to live within its enumerated powers as it is for state governments to respect the Bill of Rights. Insisting on both sets the state-federal balance right.
III.
The present controversy is a highly charged one. Some will doubtless be amazed that a federal court could find section 13981 unconstitutional when every American of good will abhors violence against women. Of course, incursions on dual sovereignty will always carry a measure of democratic sanction, representing as they do the enactments of the elected branches of government. Still, the structural dictates of dual sovereignty must not ebb and flow with the tides of popular support.
VAWA’s civil suit provision falters for the most basic of reasons. Section 13981 scales the last redoubt of state government — the regulation of domestic relations. By attaching civil penalties to criminal, but domestic, conduct, section 13981 “by its terms has nothing to do with ‘commerce.’ ” Lopez, 514 U.S. at 561, 115 S.Ct. 1624. Appellant’s defense of the provision rests on the same analogy rejected in Lopez — that of attenuated causation to national productivity. See id. at 564, 115 S.Ct. 1624 (rejecting “costs of crime” and “national productivity” rationales because they would grant unlimited regulatory powers to Congress).
Section 13981 cannot be sustained under Section 5 of the Fourteenth Amendment for some of the same reasons that it cannot be sustained as an exercise of the commerce power. In both cases the displacement of state prerogatives in areas of traditional state concern would be profound. The displacement under the Fourteenth Amendment would come from the impermissible use of the enforcement and remedial powers of Section 5 to redefine Section 1 to include prohibitions on purely private actions. If Section 5 alone were read to allow Congress to regulate private (and often purely domestic) conduct, it would, just like an unlimited reading of the Commerce Clause, intrude on what has traditionally been the core of the state police power.* From whatever vantage *897point one views the case, the rent in the fabric of our federalism would be profound.
Our decision will assuredly be characterized as unjustifiable judicial activism. And just as assuredly, that characterization will miss the mark. It is true that our holding is “activist” in the sense that one provision in a federal statute is declared unconstitutional (the remainder of the Violence Against Women Act remains in effect). What is equally true, however, is that today’s decision has the distinguishing features of the third period of judicial scrutiny and not the discrediting features of the previous two. The substance of the issue before us is wholly disparate from Lopez and Printz and cannot be said to be part of any substantive judicial agenda. The holding here vindicates the structural values of government by reaffirming the concept of enumerated powers. And it vindicates the role of the judiciary in maintaining this structural balance. Finally, it vindicates the textual values of the Constitution by refusing to assign a meaning to “commerce” that is nowhere comprehended by the term.
My fine colleagues in dissent would not have it this way. The dissent simply rewrites the Constitution to its taste. It promotes a congressional power without limitation. Under this view, two pillars of our government will crumble: The courts would have almost no role in structural disputes and the states would play no more than a bit part in our federal system.
The restraints the dissent proposes to prevent this constitutional undoing are wholly ineffectual. First, the dissent argues that Congress can act under the Commerce Clause when it seeks to supplement, not supplant, state actions. Post at 930. But practically any exercise of congressional power can be artfully characterized as “supplementary” — it will be the rare ease where at least .some states do not have some laws that attempt in some fashion to deal with the problem Congress seeks to redress. Second, if congressional enactments can conceivably be called civil rights statutes, then according to the dissent the judiciary must abdicate its role. Post at 930-32. Of course, most civil rights statutes should and will be sustained under the Commerce Clause. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); Hoffman v. Hunt, 126 F.3d 575 (4th Cir.1997). But statutes are not free from constitutional scrutiny solely because of their characterization as civil rights enactments. Third, the dissent asserts that in areas where states cannot “handle the problem,” enumerated powers are converted into plenary ones. Post at 931. In practice, this will mean that when the state experimentation that our federal system envisages does not take the precise form that Congress prefers, Congress can impose a uniform rule.
Through these unexamined labels and glib formulas, none of which have any foundation in Supreme Court case law, the dissent would sweep the role of the judiciary and the place of the states away. The dissent’s response is that the states can fend for themselves in the political system. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 554, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1984). This, however, ignores the vast temptation on the part of Congress to attempt the solution of any and all of our problems, no matter how remote from commerce they may be. I agree that Congress has great latitude in legislating, but under the dissent’s rationale, the states must meekly and subserviently swallow whatever Congress serves up. If, as the dissent suggests, judicial acts to safeguard Our Federalism are ipso facto violations of separation of powers, the role of the courts would not be what Marbury envisioned and the role of the states would not be what the Framers designed.
Maintaining the integrity of the enumerated powers does not mean that statutes will topple like falling dominos. Rather, the values of federalism must be tempered by the maxims of prudence and restraint. There have been signs, of course, that Lopez would presage an era of aggressive intrusion into the activities of coordinate branches. See, e.g., United States v. Olin Corp., 927 F.Supp. 1502, 1521-33 (S.D.Ala.1996) (holding that as applied Comprehensive Environmental Response, Compensation and Liability Act (CER-CLA) exceeds Congress’ commerce power), rev’d, 107 F.3d 1506 (11th Cir.1997). Neither the Supreme Court nor the judiciary as a whole, however, has seen fit to take Lopez that far. This is as it should be. A *898wholesale invalidation of environmental, civil rights, and business regulation would signal a different and disturbing regime — one other than that which we have now. If modern activism accelerates to a gallop, then this era will go the way of its discredited forebear.
In the end, neither swift retreat to cramped notions of commercial activity nor cessation of our judicial role will do. Only a role that is measured and cautious will ensure that a balanced allocation of powers in our federal system remains to protect our individual liberty. Today’s holding is a measured one. To sustain this provision would signal that state governments are due no more than the sweet pieties of lip service and that no limits whatsoever exist on the exercise of congressional power.
I would affirm the judgment.
I believe that City of Boeme by itself effectively disposes of appellant’s Section 5 arguments. The Court in that case was both clear and emphatic: "Congress does not enforce a constitutional right by changing what the right is. It has been given the power 'to enforce,' not the power to determine what constitutes a constitutional violation.” City of Boerne, 117 S.Ct. at 2164. Here, appellants are seeking the right to redefine the Fourteenth Amendment in contravention of not only the amendment’s own language, but also the Supreme Court’s recent ruling. See id. at 2164-66 (detailing the federalism rationale underlying the restriction of the Fourteenth Amendment to state action).
In relying in its Section 5 analysis extensively, upon the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883), and United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290 (1883), I do not understand the majority opinion either to adopt or endorse the discredited holdings in those cases. Rather, the majority relies on them for the same reason that the Supreme Court does, for the proposition that "their treatment of Congress’ § 5 power as corrective or preventive, not definitional, has not been questioned.” City of Boerne, 117 S.Ct. at 2166.