May 28, 2000

SUPREME COURT RECOGNIZES STATES' AUTHORITY OVER CRIME

The Supreme Court did a little gardening earlier this month, chopping back a sprig of the federal bindweed that constantly threatens to invade the territory reserved to the states by the Constitution.

By a vote of 5-4, it overturned a provision of the 1994 Violence Against Women Act allowing victims of a crime "motivated by gender" to sue for civil damages in federal courts.

Congress justified this intrusion on the police power of the several states in two ways. First, appealing to the commerce clause that allows the federal government to regulate interstate commerce, it argued that violence against women affected the economy. And second, citing the equal-protection clause of the Fourteenth Amendment, it claimed that the failure of the state courts to act with sufficient vigor in cases of sexual violence justified a federal remedy.

The opinion in United States vs. Morrison, by Chief Justice William Rehnquist, dismissed both these rationalizations. "Gender-motivated crimes of violence are not, in any sense of the word, economic activity," he wrote, and the court has consistently upheld commerce-clause regulation of intrastate activity only when the activity is economic.

The court relied on a 1995 decision, United States vs. Lopez, which invalidated a federal law banning possession of a firearm in a school zone, part of the Gun-Free School Zones Act. Carrying a gun to school, by itself, is not an economic activity. "If we were to accept the Government's arguments" (about the sweeping interpretation of the commerce clause), the court observed in Lopez, "we are hard-pressed to posit any activity by an individual that Congress is without power to regulate."

In Morrison, Rehnquist wrote, "we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims."

Rehnquist rejected the Fourteenth Amendment argument as well, on the long-established principle that its provisions "have reference to state action exclusively, and not to any action of private individuals" (from an1883 case).

The case that led to Morrison was brought by Christy Brzonkala, formerly a student at Virginia Polytechnic Institute, against Tony Morrison and Jim Crawford, also VPI students and members of its football team. According to the Center for Individual Rights, which has assisted in the men's defense, Brzonkala alleges they raped her when she went to their dorm room after a party. The university did not sustain the rape charges, though it eventually imposed a one-year suspension (later deferred) on Morrison for "abusive language."

A Virginia grand jury refused to indict the two men. So Brzonkala filed a federal suit under VAWA, asking for "an injunction directing Virginia Tech to provide at least five hours of mandatory sexual assault awareness education to student athletes" -- and $8.3 million in damages, by no accident just what VPI had earned for its participation in the Sugar Bowl.

Opposing Morrison's motion to dismiss the case, Brzonkala attorney Eileen Wagner argued, "Plaintiff believes her case will forever change the cavalier attitude widely used to dismiss the sufferings of sexual assault survivors everywhere ... plaintiff anticipates this litigation will refocus crime prevention efforts for sexual assault on the behavior of the perpetrator ... plaintiff expects this litigation to dissect the ancient misogynistic myth that women secretly desire to be raped."

And so forth.

Such arguments were much in the air when VAWA was being debated, and Congress fell for them. Or was too craven to resist accusations that it wasn't sufficiently sensitive to women's issues. Probably both, suggesting that Congress will continue to pass unconstitutional laws, confident that the Supreme Court will save it from its folly.

But the decision, remember, was 5-4. The next president could reinforce the majority, or reverse it, depending on his choices for the Supreme Court. If you think it doesn't make any difference who wins in November, you couldn't be more wrong. And Morrison is only one reason why.

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