By Curt A. Levey
The National Law Journal, December 4, 2000
With a federalism revolution raging in the U.S. Supreme Court, much of the focus has been on the expansion of state sovereignty, which is at issue again this term. As the court ponders one such case – Alabama’s sovereign immunity challenge to the Americans with Disabilities Act – critics of federalism are once again fretting about the potential impact of states’ rights on civil rights. Their concern exposes a basic misunderstanding that needs to be corrected: Federalism is about much more than state sovereignty and can actually enhance civil rights.
This truth is best illustrated by last term’s most important federalism decision, U.S. v. Morrison, 120 S.Ct. 1740 (2000), which voided the civil suit provision of the Violence Against Women Act (VAWA) on enumerated powers grounds. Denunciations of the ruling as a setback for civil rights and a triumph of states’ rights fail to comprehend the basis for the court’s decision and the founders’ rationale for limiting federal power.
Individual vs. state
Morrison was about Congress’ power over private individuals – not states -exercised here by authorizing victims of gender-motivated violence to sue their attackers in federal court. Indeed, the decision rested partly on the private vs. state distinction. Because it placed limits on what the federal government can do to you and me, Morrison was part of the Supreme Court’s long tradition of protecting civil liberties.
Those who see VAWA’s demise as a blow to women’s rights ignore the cost to everyone’s rights of eviscerating the constitutional limits on Congressional power. That cost, the Morrison Court said, would be to leave virtually no “activity by an individual that Congress is without power to regulate.”
Federal hegemony also threatens to undermine state protection of civil rights, which often exceeds federal guarantees. As Supreme Court Justice William Brennan noted, the states’ extra protection is made possible by federalism. Liberals would probably embrace federalism again if the issue involved state guarantees of partial birth abortion or gay marriage in the face of a federal ban. In fact, in Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000), Justice John Paul Stevens cited federalism in admonishing the court for interfering with New Jersey’s protection of gay rights.
The rights of the accused are threatened as well when prosecutors use redundant federal criminal statutes to circumvent state court protections. Take Rita Gluzman, accused of killing her husband. Using VAWA’s criminal provision, federal prosecutors made a successful end run around New York’s prohibition against convictions based solely on accomplice testimony. U.S. v. Gluzman, cert. denied, 119 S. Ct. 1257 (1999).
In states such as Florida that allow criminal defendants to examine the witnesses and evidence against them, prosecutors are similarly attracted to federal court, where this right is largely nonexistent. Fortunately, Morrison limits Congress’ ability to nullify state-granted civil liberties any time it is tempted to federalize a crime.
Redundant federal laws also raise the specter of defendants being tried multiple times for the same alleged offense. When Morrison plaintiff Christy Brzonkala accused Virginia Tech students Tony Morrison and James Crawford of raping her, she failed to convince either a state grand jury or a university judicial panel. Yet Ms. Brzonkala not only repeated her unsubstantiated allegation in state lawsuits against the men, but also used VAWA to subject them to five years of federal litigation. Federal criminal charges were also an option under VAWA.
The scorched- earth policy encouraged by VAWA can be justified only by assuming that virtually every accusation of sexual assault and domestic abuse should result in conviction or a damage award. It is a chilling notion that nonetheless formed the asserted political and legal justification for VAWA.
States’ rights were of little relevance to Messrs. Morrison and Crawford. But if their victory indirectly strengthens state sovereignty, individual liberty will benefit. As the Supreme Court noted in 1992 in New York v. U.S., “the Constitution does not protect the sovereignty of States for the benefit of the States…. [T]he Constitution divides authority between federal and state governments for the protection of individuals.”
Whether it is two young men or the state of Alabama standing before the court, the principle is the same: No one is better off if the federal government can ignore the constitutional bounds on its power.