Sex and the Interstate Commerce Clause

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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 Republicans afraid of backlash from the Clarence Thomas/​Anita Hill hearings to enact VAWA, which gave women a right to sue in federal court on matters in which they already had a right to sue in state court. For example, state rape laws already provide that the rapist can be sent to prison and that the victim can sue the rapist to recover direct financial losses (e.g., medical expenses) and for pain and suffering.

So when college student Christy Brzonkala got very drunk one night and by her account was date‐​raped by two other college students, she got to sue in federal court, rather than state court.

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

Congress does, of course, have the constitutional power “to regulate commerce … among the several states.” So Congress claimed that VAWA was a legitimate exercise of the power to regulate interstate commerce. But it’s quite a stretch to claim that the power to regulate the buying and selling of products across state lines includes the power to regulate drunken sex acts of college students.

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

“We the People,” the court began, “distrustful of power, and believing that government limited and dispersed protects freedom best, provided that our federal government would be one of enumerated powers, and that all power unenumerated would be reserved to the several States and to ourselves.” Even if a crime is motivated by “gender animus” (instead of the animus against the entire human race, which motivates most criminals), the criminal’s intent doesn’t turn the crime into an act of interstate commerce.

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

Feminist organizations were quick to denounce the Brzonkala result, but they would be wise to reconsider. You see, if Congress can’t pass laws about college sex under its interstate commerce power, then Congress can’t pass laws to restrict abortion by claiming that abortion “affects” interstate commerce. Medical procedures (such as “partial‐​birth abortion”) performed within a single state are not “interstate commerce,” and are even less likely to indirectly affect interstate commerce than does violence against women.

Political reformers also ought to applaud the Brzonkala decision. The effort to diminish the role that money plays in the political world has so far been confined to treating symptoms: large amounts of campaign cash and special‐​interest influence. But those are just symptoms of the underlying problem: the federal government does too much, inspiring too many interest groups to seek to influence policy.

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