The unlikely case that brings so fundamental an issue to the fore, United States v. Morrison, 169 F.3d 820 (4th Cir. 1999), cert. granted, 120 S.Ct. 11 (1999), arose out of allegations made by Christy Brzonkala, a Virginia Polytechnic Institute student, whom two football players allegedly raped in a dormitory. Virginia officials investigated the matter, but a state grand jury refused to indict. Brzonkala then brought suit in federal district court, alleging the men had violated her rights under the Violence Against Women Act to be free of gender‐based crimes of violence.
The act 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 similar state statutes. And therein lies the problem: Where in the Constitution does Congress find authority to enact such legislation?
Brzonkala pointed to two sources: Congress’s power “to regulate commerce among the several states” and its power under the 14th Amendment to enforce the Equal Protection Clause. Not so, said the district court. The act does not regulate commerce. Moreover, the 14th Amendment protects against state violations, not against private acts. A divided panel of the 4th U.S. Circuit of Appeals reversed the district court, but the full Court of Appeals vacated the panel’s decision.
Violence against women is a national problem. But that does not make it, under the Constitution, a federal problem. This case takes us to the “first principles” articulated in United States v. Lopez, 514 U.S. 549 (1995). There, is said, for the first time since the New Deal, Congress’s power to regulate commerce 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 William H. 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 James Madison could have written that the powers of the federal government under the new Constitution would be “few and defined.” The watershed cases came during the New Deal, of course, followed by President Franklin 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, that clause was meant primarily to enable Congress to regulate — or make regular — commerce among the states. It was designed to liberate trade, not to enable Congress to regulate anything for any purpose — and certainly not to afford Congress the kind of police power that was reserved for 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 could think of nothing that was beyond that power of Congress to regulate. Thus, we go through the charade, as in Morrison, of saying that Congress can regulate violence against women because it “affects” interstate commerce. The same could be said about violence against men, of course — 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 14th Amendment, even though the plain language of the amendment prohibits states, not private individuals, from violating rights. Here, too, the issue is limited power, as the Supreme Court made clear recently in City of Boerne v. Flores, 521 U.S. 507 (1997): “Under our Constitution, the Federal government is one of enumerated powers.”
In his latest, Castro‐length State of the Union address, President Clinton proposed more than 100 new federal programs, most of dubious constitutionality. If Morrison goes the way of Lopez and Boerne, we may yet see constitutional government restored.