Let the states do it, not Washington

Rule of law

By Michael W. McConnell

The Wall Street Journal, March 29, 1999

For the past decade the Supreme Court has been reviving an old but important idea: that the powers vested in the federal government are not unlimited.

In U.S. v Lopez, the court held that the Commerce Clause doesn’t justify regulation of possession of guns in schools. In Printz v U.S., it held that the federal government cannot commandeer state governments to enforce federal regulations. In City of Boerne v. Flores, it held that the federal government cannot restrict state and local governmental action in the name of enforcing individual constitutional rights beyond those recognized by the court. And in a series of decisions, it held that the power of federal courts to assume jurisdiction over state governments is limited by the 11th Amendment. The revival of federalism is the most striking feature of the constitutional jurisprudence of the Rehnquist court. Now it is spreading to the lower courts.

In a highly significant ruling, the Fourth Circuit Court of Appeals in Richmond, Va., has just struck down the hugely popular Violence Against Women Act. In an opinion written by Judge Michael Luttig, who is emerging as one of the boldest and most scholarly appellate judges in the country, the court held that the act exceeds Congress’s constitutional authority under the Commerce Clause and the 14th Amendment. In short, the Violence Against Women Act was an improper incursion by the federal government into the constitutional domain of state law.

Passed unanimously by the House and by a lopsided bipartisan majority in the Senate, the Violence Against Women Act was hailed by feminist advocacy groups as the most important legislative advance for women’s rights in decades. The statute created new federal crimes for violent acts “motivated by gender” and for “interstate domestic violence.”

No one would disagree that such crimes deserve to be punished, but why by the federal courts instead of the state courts? The Fourth Circuit’s logic in striking down the law is unassailable.

The Clinton administration had defended the statute under Congress’s power to regulate commerce among the states, but the conduct regulated by the statute plainly isn’t commercial in nature. The case, Brzonkala v. Virginia Polytechnic Institute, involved an alleged rape of a female student by two football players. By what stretch of logic could this act of violence be called “commerce”? As the Fourth Circuit pointed out, “some violent crimes, such as robbery, may be economically motivated and thus at least arguably ‘economic’ in a loose sense,” but the Violence Against Women Act “addresses violent crime arising from the irrational motive of gender animus, a type of crime relatively unlikely to have any economic character at all.”

The government further argued that gender-motivated crime “affects” commerce because of health care and other economic costs, and that fear of gender- motivated violence might dissuade some women from traveling in interstate commerce. But by this logic, it is hard to imagine any conduct that wouldn’t fall within Congress’s power to regulate “commerce.”

Justice Department lawyers also defended the statute under Congress’s authority to enforce the provisions of the 14th Amendment, which prohibits any “state” from denying to any person the equal protection of the laws. It doesn’t take a legal education to recognize that Virginia Polytechnic Institute football players are not a “state.” Purely private conduct by private persons, whatever their motivation, does not violate the 14th Amendment.

Finally, the government argued that act is a legitimate exercise of Congress’s 14th Amendment enforcement power because the justice systems of the states are often infected by gender bias, making it impossible for women to obtain the “equal protection of the laws.” Contrast this argument with the legislative history of the act, which describes state efforts to assist victims of rape and domestic violence as “fervent” and “sincere.” There is no empirical evidence in the legislative record to suggest that states are unconstitutionally denying protection to female victims of violence. Indeed, rapists receive harsher penalties, on average, in state than in federal courts.

The hard question is why such a statute would ever be enacted.

Both the civil and the criminal provisions of the Violence Against Women Act largely duplicate laws already in place in the states, and it is the states — not the federal government — that have the experience and infrastructure available for dealing with most violent crimes. At various stages of congressional consideration, the statute was opposed by the Justice Department, the Conference of Chief Justices, and the United States Judicial Conference, on the ground that it would produce duplication and confusion, would undermine the law-enforcement functions of the state, and would put unnecessary burdens on the federal courts. More recently, an American Bar Association task force on the federalization of criminal law, chaired by former Attorney General Edwin Meese III pointed to the Violence Against Women Act as an example of the trend toward “inappropriate federalization” of criminal law.

The ABA task force notes that “federal crime legislation is thought to be politically popular.” By voting for federal laws, members of Congress demonstrate to their constituents that they are attempting to “do something” about crime. And in fact, the Violence Against Women Act was an exercise in symbolic politics. As the Fourth Circuit points out, the law’s legislative history “clearly demonstrates” that its purpose “was not so much to redress violations of Equal Protection, but rather to send a national signal about the harms of violence against women.”

It is easy for members of Congress — even the many lawyers there — to overlook the long-term benefits of the federal structure when considering politically symbolic legislation with strong backing from ideological interest groups. That is why it is important for courts to serve as a constitutional backstop. No constitutional principle is more central to our system of government than the idea that power must be divided among different hands.

The powers of Congress under the Commerce Clause are broad, but when Congress undertakes to regulate conduct that is wholly noneconomic, the courts must be prepared, like the Fourth Circuit, to enforce the limits set by the Constitution.