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Assault on Federalism Swipes at Women

May 21, 2000|Herman Schwartz | Herman Schwartz, a professor of constitutional law at American University, is the author of "Packing the Courts: The Conservatives' Campaign to Rewrite the Constitution."

WASHINGTON — Monday, in a burst of judicial activism, the U.S. Supreme Court's five conservative justices fired another salvo in their jihad against the federal government. This time their target was the Violence Against Women Act (VAWA), a 1994 law passed by Congress to offset the states' failure to protect women against domestic violence.

U.S. history can be seen as a story of the struggle between federal and states' rights. The New Deal saw a major shift in power to the federal government, which successive Democratic administrations and their judicial appointees used to protect workers, poor people, women and minorities--often over the opposition of conservative Republicans. When Ronald Reagan became president, conservatives saw an opportunity to turn the clock back and curtail federal power. A key element of this campaign was reshaping the federal judiciary, particularly the Supreme Court. When President George Bush appointed Clarence Thomas to the court in 1991, a slim, five-member conservative majority was finally put together to launch the judicial crusade against Washington.

Waving the banner of states' rights and blithely ignoring all their own previous strictures against judicial activism, the conservative justices have crafted in just eight years a set of doctrines that have produced some 11 decisions striking down congressional action. The most recent, and potentially one of the most far-reaching, Brzonkala vs. Morrison, was handed down last week.

Christy Brzonkala, a freshman at Virginia Polytechnic Institute, was raped by Antonio J. Morrison and James Crawford, two members of the varsity football team, in 1994. Though the school's disciplinary system found Morrison guilty, the decision was overturned on appeal, and he was allowed to return the next year. On learning this, Brzonkala dropped out. She sued both Morrison and Virginia Tech in federal court under the VAWA. A sharply divided 4th Circuit Court of Appeals, the most conservative appellate federal court, ruled against her.

Now, at the Supreme Court, she has lost again. The 5-4 majority narrowly ruled that Congress' commerce-clause power did not extend to matters "noncommercial" or "noneconomic in nature," regardless of their impact on the economy, and her claim fell into the "noneconomic" category. Brzonkala also relied on Section 5 of the 14th Amendment, which authorizes Congress to pass laws to enforce the amendment, for constitutional authority for the VAWA. That claim was also rejected because, according to the majority, Brzonkala's suit was against private individuals, and Section 5 authorizes Congress to take action only against states.

The court's commerce-clause ruling was virtually a foregone conclusion, in light of its 1995 ruling in United States vs. Lopez, in which the court struck down a federal law banning guns in a school zone. There, the court stressed that Congress had made no factual findings to support the claim that interstate commerce was substantially affected. Here, however, there was, according to dissenting Justice David H. Souter's opinion, a "mountain of data assembled by Congress . . . showing the effects of violence against women on interstate commerce . . . [extending over] four years of hearings, which included testimony . . . from state law enforcement and private business." In 1990, violence against women cost at least $3 billion a year. Thirty-eight states had urged passage of the VAWA; and 36 supported it before the court.

The court ignored all this data. Instead, in an opinion by Chief Justice William H. Rehnquist reminiscent of pre-New Deal, anti-federal decisions, the conservative majority adopted an approach that put laws into boxes neatly labeled "commercial," "economic" and "noneconomic in nature." Constitutional history, however, is strewn with the wreckage of efforts to draw such sharp categorical lines based on the inherent "nature" of the activity. In the pre-New Deal era, one such failure was the distinction between "direct" and "indirect." A more recent failure was the conservative justices' attempt, in a 1976 case, to prevent the federal government from regulating "traditional" state activities like employment and transportation and limit it to certain "nontraditional" activities. The court abandoned this effort in 1985, in Garcia vs. San Antonio Metropolitan Transit Authority, after nine years of confusion and wasteful litigation, and said the limits of federal regulation should be drawn by the political branches of government, not the federal judiciary.

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