In whose best interest? Not the states'
By Peter M. Shane
The Washington Post, May 21, 2000
The right of rape and domestic violence victims to sue their attackers in federal court--a right that Congress enacted in 1994 and the Supreme Court took away last week in the name of state sovereignty--was "a particularly appropriate remedy for the harm caused by gender-motivated violence."
Who says? Not Bill Clinton or Janet Reno or some member of Congress trying to usurp the power of the states. Rather, those are the words of the attorneys general from 36 of the states whose very interests the Supreme Court is so intent on protecting.
In a friend-of-the-court brief filed last November, these legal guardians of their states (along with the attorney general of Puerto Rico) asserted that the Violence Against Women Act "complements state and local efforts to combat violence against women." They saw the law--and the provision that gave victims the legal right to pursue damages through federal lawsuits--as a legitimate way to address a growing problem that is local in nature but national in scope.
Their collective judgment exposes one of the more bizarre aspects of the Supreme Court's recent activism on behalf of state sovereignty: From the states' point of view, this campaign is often pointless and sometimes counterproductive.
Fans of last week's decision, United States v. Morrison, cheered the ruling because--at least, superficially--it appealed to common sense. They stressed two major points: First, that Congress had been wrong in trying to deter violence against women by passing legislation based on its authority to "regulate commerce . . . among the several states." Gender-based violence, they pointed out, is certainly not "commerce."
The second, embraced in a Washington Post editorial, was that Congress had gone too far and the court was right to rein it in. "If Congress could federalize rape and assault, it's hard to think of anything it couldn't," the Post editorial said.
The problem with the first point is that it divorces the "commerce" clause from its history and purpose. Congress's authority over interstate commerce is part of a substantial menu of powers drawn up by the Committee on Detail at the 1789 Constitutional Convention. The committee wasn't interested merely in commerce; it was trying to fulfill the delegates' resolution that Congress should have the power "to legislate in all cases to which the separate states are incompetent. . . ."
In short, the delegates intended that Congress have the capacity to address national problems that the states could not resolve by themselves. Not only was Congress given an impressive list of specific powers toward this end, but the list ends with the very general authority "to make laws which shall be necessary and proper" to implement those powers.
In their brief in U.S. v. Morrison, the attorneys general said that violence against women is just the kind of problem that the states cannot remedy by themselves. "The States' own studies demonstrate that [their] efforts to combat gender-motivated violence, while substantial, are not sufficient by themselves to remedy the harm caused by such violence or to eliminate its occurrence," they wrote.
Because of the purpose behind the commerce clause, the Supreme Court has long held that it does not confine Congress to the direct regulation of interstate commerce. Congress may regulate activity that is not itself interstate commerce if the purpose of the regulation is to promote interstate commerce, relieve it of obstacles or prevent it from becoming the vehicle of social harm.
Yes, it is common sense that rape is not commerce. But it is hardly common sense that Congress's power to promote commerce is so limited that it cannot legislate against a practice that costs the national economy billions of dollars annually, including the burdens of absenteeism and lost productivity. The attorneys general had no problem in finding an economic reason for preventing gender-based violence: "As employers of women and providers of services necessitated by domestic violence, the . . . states are directly and substantially affected by the monetary and other harm that results from violence against women."
As for the second point--that Congress had overstepped its authority and was setting a precedent for regulating almost any activity--the proper constitutional response is, "So what?"
The Constitution gives each branch of government a variety of exclusive and far-ranging powers that are plainly susceptible to abuse. The president, with his pardon power, could empty the federal prisons--but no president has done that. Federal courts, through their adjudicatory powers, could thwart the executive branch's ability to litigate civil or criminal matters--but that hasn't happened, either. Congress, through its impeachment power--well, you get the point.
For the elected branches, the primary check on abuse of discretion is not judicial review, but political accountability: We can vote them out of office.
Champions of state sovereignty are wont to stress that we currently have a national government more powerful and intrusive than anything the framers of the Constitution could have imagined.
But state governments also fit that exact description. Altogether, the 50 states now employ more than 4.7 million people--nearly twice the size of our shrinking federal work force--and, together with local government, they spend roughly $ 1.35 trillion a year. They possess licensing authorities that potentially constrain the travel and economic activities of virtually all adults. They possess comprehensive databases of their citizens' whereabouts (and often of their health, income and family status, as well).
Between 1952 and 1992, direct expenditures by state and local governments, measured in 1992 dollars, multiplied six times. State spending has grown at nearly twice the rate of federal spending.
Has Congress been hostile to the states during this time of burgeoning state power? Hardly. Between 1970 and 1998, federal grants-in-aid to the states went from just over $ 24 million to nearly $ 251 million, which, even measured in 1998 dollars, was still a 249 percent increase.
As such, it cannot be argued seriously that the states today are somehow less vital or more precarious venues for the creation and implementation of public policy than the framers anticipated in 1789.
To understand how the Supreme Court's bout of creativity on behalf of state sovereignty is producing incoherent legal results, let's do a little test.
Twice this year, the court has reviewed commerce clause-based laws that supposedly intruded into the power of the state to make policy. One was the 1994 Drivers Privacy Protection Act, which prohibited states, in most cases, from disclosing a driver's personal information to private businesses or individuals without the driver's consent. The law blocked states from increasing their revenues by selling access to these commercially valuable databases.
The other is the provision in the Violence Against Women Act that would have allowed Christy Brzonkala, the former Virginia Tech student who was the original plaintiff in U.S. v. Morrison, to sue her alleged rapist in a federal court.
Imagine, now, that you are a fair-minded observer from a distant land. You are told that the Supreme Court has invalidated one--and only one--of these laws as an impermissible incursion into state authority.
Surely, most such observers would choose the drivers' privacy law because it actually limits the power of the states. Yet, the Supreme Court unanimously upheld the drivers' privacy law just months before it struck down Brzonkala's right to sue--even though her right posed no tension between state and federal authorities.
It's the Supreme Court, not Congress, that has gone too far. If Congress needs to be curbed, that is a job better left to voters. As for the states, they're doing just fine without the court's help.
Peter Shane is a professor of law at the University of Pittsburgh.
Last revised: January 7, 2009