Commentary

Feminism and the Limits of Federal Power

The hottest ticket in Washington last week was to the Supreme Court, where seats had long been “sold out” to hear oral argument in the case of United States v. Morrison. At issue is the constitutionality of the Violence Against Women Act (VAWA), which alone would explain the interest. But those focused on the feminist angle are missing the main event. At bottom, this case is not about feminism. It’s about the reach of federal power, which is why the attention of Washington is more than passing.

The unlikely case that brings so fundamental a question to the fore arose out of allegations made by one Christy Brzonkala, then a freshman at the Virginia Polytechnic Institute, that two VPI football players, including Antonio Morrison, had raped her in a university dormitory shortly after making her acquaintance in September 1994. Not until February 1995 did Brzonkala present university officials with the allegations, however, which the men sharply denied. Morrison was eventually suspended from school, but then reinstated. State officials investigated the matter, but after considering the evidence, a state grand jury refused to indict.

Brzonkala then brought suit in federal district court, alleging, among other things, that the men had violated her rights under VAWA to be free of gender based crimes of violence. VAWA creates a federal private cause of action against anyone “who commits a crime of violence motivated by gender.” It is, in effect, a federal tort statute, much like the tort law that every state has, which enables people to sue those who’ve wronged them. And therein lies the problem: Where in the Constitution does Congress find the authority to enact such legislation, which under our federalist system belongs to the states?

Brzonkala pointed to two sources: the power of Congress “to regulate Commerce among the several States;” and the power of Congress, under the Fourteenth Amendment, to enforce the provision of the amendment that prohibits states from denying people the equal protection of the laws. Not so, said the district court. Not remotely does VAWA regulate commerce. Moreover, the Fourteenth Amendment protects against state violations, not against private acts. A divided panel of the Fourth Circuit reversed the district court, but the full court vacated the panel’s decision, which brings us to last week.

The issue of violence against women has long been on the feminist agenda, and not without reason. It is, as feminists have said, a “national problem.” But that does not make it, under the Constitution, a federal problem. This case takes us to “first principles,” which the Court last articulated in 1995 in a case called United States v. Lopez. There the Court said, for the first time since the New Deal, that Congress’s power to regulate commerce among the states is not a power to regulate everything. Lopez shocked official Washington, which had grown to believe that Congress’s power to regulate under the Commerce Clause was virtually plenary. In Lopez, Chief Justice Rehnquist drew a line in the sand: “We start with first principles. The Constitution establishes a government of enumerated powers.” That ended the easy assumptions of the past 60 years. The question now is whether the Court meant it, and whether its fragile 5-4 majority will hold.

Looking at Washington today, it is hard to believe that Madison could have written, in Federalist 45, that the powers of the federal government under the new Constitution would be “few and defined.” The watershed came during the New Deal, of course, following President Roosevelt’s notorious Court-packing scheme. And nowhere did the Court’s change of heart about limits on federal power manifest itself more than with the Commerce Clause. Written against a background of state protectionism, under the Articles of Confederation, that clause was meant primarily to enable Congress to regulate-or make regular-commerce among the states. It was designed to free trade, not to enable Congress to regulate anything for any purpose-and certainly not to afford Congress the kind of general police power that was reserved to the states. Yet the New Deal Court’s revolution spawned, in effect, just such a power. When the Court was through, Congress could regulate anything that “affected” interstate commerce. Since everything, at some level, affects interstate commerce, the floodgates were opened and the modern regulatory state poured through. Indeed, during oral argument in Lopez, the government, when challenged by Justice Ginsburg, could think of not a single thing that was beyond the power of Congress to regulate.

Thus, we go through the charade, as in this case, of saying that violence against women can be regulated by Congress because it “affects” interstate commerce. Of course, the same could be said, perhaps more so, about violence against men, or about anything, for that matter. And if Commerce Clause arguments should somehow fail, we say that Congress can create private causes of action under the Fourteenth Amendment even though the plain language of the amendment prohibits states, not private individuals, from violating rights.

This case, therefore, is about much more than is apparent on the surface. It’s about whether there are any limits on federal power. Even more, it’s about constitutional integrity, which is no small matter for a free society. That’s why the eyes of Washington will be on the Court again when this case is decided.

Roger Pilon is vice president for legal affairs at the Cato Institute and is the founder and director of Cato’s Center for Constitutional Studies.