United States v. Morrison, 529 U.S. 598, 27 (2000)

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624

UNITED STATES v. MORRISON

Opinion of the Court

To accept petitioners' argument, moreover, one must add to the three Justices joining Justice Brennan's reasoned explanation for his belief that the Civil Rights Cases were wrongly decided, the three Justices joining Justice Clark's opinion who gave no explanation whatever for their similar view. This is simply not the way that reasoned constitutional adjudication proceeds. We accordingly have no hesitation in saying that it would take more than the naked dicta contained in Justice Clark's opinion, when added to Justice Brennan's opinion, to cast any doubt upon the enduring vitality of the Civil Rights Cases and Harris.

Petitioners also rely on District of Columbia v. Carter, 409 U. S. 418 (1973). Carter was a case addressing the question whether the District of Columbia was a "State" within the meaning of Rev. Stat. 1979, 42 U. S. C. 1983—a section which by its terms requires state action before it may be employed. A footnote in that opinion recites the same litany respecting Guest that petitioners rely on. This litany is of course entirely dicta, and in any event cannot rise above its source. We believe that the description of the 5 power contained in the Civil Rights Cases is correct:

"But where a subject is not submitted to the general legislative power of Congress, but is only submitted thereto for the purpose of rendering effective some prohibition against particular [s]tate legislation or [s]tate action in reference to that subject, the power given is limited by its object, and any legislation by Congress in the matter must necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited state laws or proceedings of [s]tate officers." 109 U. S., at 18.

Petitioners alternatively argue that, unlike the situation in the Civil Rights Cases, here there has been gender-based disparate treatment by state authorities, whereas in those cases there was no indication of such state action. There is

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