Sex and the Interstate Commerce Clause


Maybe it was a matter of timing (Monica's book was just hitting the stands), but when a federal appeals court declared the Violence Against Women Act (VAWA) unconstitutional last week it didn't get much attention. In fact, it may be the most important court case this year, because it sharply limits the ability of Congress to create categories of lawsuits. Interestingly, two groups that should have been rejoicing over the decision weren't.

Back in 1994, the Clinton administration got Democrats and Republicansafraid of backlash from the Clarence Thomas/Anita Hill hearings to enactVAWA, which gave women a right to sue in federal court on matters in whichthey already had a right to sue in state court. For example, state rape lawsalready provide that the rapist can be sent to prison and that the victimcan sue the rapist to recover direct financial losses (e.g., medicalexpenses) and for pain and suffering.

So when college student Christy Brzonkala got very drunk one night and byher account was date-raped by two other college students, she got to sue infederal court, rather than state court.

But nothing in the Constitution allows Congress to force federal courts tohear lawsuits involving a dispute between people from the same state. (Thereare a few exceptions, such as when a local government official attempts tointerfere with a person's exercise of federal civil rights.)

Congress does, of course, have the constitutional power "to regulatecommerce . . . among the several states." So Congress claimed that VAWA wasa legitimate exercise of the power to regulate interstate commerce. Butit's quite a stretch to claim that the power to regulate the buying andselling of products across state lines includes the power to regulatedrunken sex acts of college students.

And so the Fourth U.S. Circuit Court of Appeals ruled in the case ofBrzonkala vs. Virginia Polytechnic Institute that the power to regulatecommerce did not include the power to create VAWA.

"We the People," the court began, "distrustful of power, and believing thatgovernment limited and dispersed protects freedom best, provided that ourfederal government would be one of enumerated powers, and that all powerunenumerated would be reserved to the several States and to ourselves." Evenif a crime is motivated by "gender animus" (instead of the animus againstthe entire human race, which motivates most criminals), the criminal'sintent doesn't turn the crime into an act of interstate commerce.

And even though all crime has some economic effects, the impact of crimeslike drunken sex on interstate commerce is insignificant. To uphold VAWA onthe basis of the assertion that crime indirectly affects interstate commercewould be to give Congress blanket authority to legislate on everyconceivable subject, since everything has some incidental economic effect.And to allow Congress to legislate on everything, the Court explained inthis decision, would be to destroy our constitutional system, which givesCongress power in only certain areas (like patents, declarations of war,taxes and interstate commerce). Under the American Constitution, all theother topics (like disputes between college students) are to be handled bythe states, not the federal government.

Feminist organizations were quick to denounce the Brzonkala result, but theywould be wise to reconsider. You see, if Congress can't pass laws aboutcollege sex under its interstate commerce power, then Congress can't passlaws to restrict abortion by claiming that abortion "affects" interstatecommerce. Medical procedures (such as "partial-birth abortion") performedwithin a single state are not "interstate commerce," and are even lesslikely to indirectly affect interstate commerce than does violence againstwomen.

Political reformers also ought to applaud the Brzonkala decision. Theeffort to diminish the role that money plays in the political world has sofar been confined to treating symptoms: large amounts of campaign cash andspecial-interest influence. But those are just symptoms of the underlyingproblem: the federal government does too much, inspiring too many interestgroups to seek to influence policy.

So long as Congress can legislate on any topic it wants, special interestswill find a way to buy influence with Congress. But a Congress that doesonly what the Constitution allows it to do will have much less power to helpspecial interests. That, of course, is exactly what the Framers had in mindwhen they set up a federal government of limited and enumerated powers inthe first place.

David B. Kopel and Glenn Harlan Reynolds

Dave Kopel is an associate policy analyst with the Cato Institute; Glenn Reynolds is professor of law at the University of Tennessee.