- The Washington Times - Tuesday, January 11, 2000

"The powers delegated by the proposed Constitution to the Federal Government," James Madison wrote in Federalist No. 45, "are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce."

Today the U.S. Supreme Court is scheduled to hear arguments about just how few and defined those powers are when it takes up a case involving the 1994 Violence Against Women Act (VAWA). The case began in September of that year when a Virginia Tech student named Christy Brzonkala stopped off at the dorm room of two Tech football players at 2 a.m. on her way home from a drinking party. Exactly what happened next is a matter of dispute. Miss Brzonkala said she was raped; one of the players said the sex was consensual, and the other denied involvement.

Six months later, Miss Brzonkala went to campus officials to say she had been raped, and both the school and a state grand jury investigated her claims. But the grand jury declined to charge either football player with rape, and school officials punished one of the defendants, not for rape, but for abusive language. Miss Brzonkala herself declined to file a civil suit in state courts, and to date won't explain her refusal to do so.

The case didn't end there though. With the help of feminist organizations, Miss Brzonkala brought suit against the school and the players for violating her rights under VAWA. The law gives victims of sexual hate crimes "gender animus" the right to sue their attackers in federal court, whether or not any criminal charges had been filed in connection with the case, much less a trial or conviction. But first a trial court and then an appeals court threw out the law on which the case was based as a legislative assault on the Constitution. The provision in VAWA that punishes "gender animus," they said, was unconstitutional because Congress had no jurisdiction over the issue as James Madison and the U.S. Constitution defined it.

Advocates of the legislation had tried to claim jurisdiction because, they said, hate crimes against women are a widespread social problem. Since women participate in commerce, the argument goes, crimes against women ultimately effect … interstate commerce. Therefore the federal government has jurisdiction over hate crimes.

It was just such logic that the Supreme Court struck down in the 1995 Lopez case. Congress had passed legislation restricting guns near schools under the Gun-Free School Zone Act, again on grounds that guns or education or kitchen sinks it didn't seem to matter affected interstate commerce and therefore justified federal intervention. In a 5-4 decision the high court took a rather less-expansive view of the commerce clause. Judges and lawmakers should not construe the clause so broadly, the court said, "as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government." The federalism that the Constitution ordains still matters.

The irony is that Virginia, where the violence allegedly occurred, tends to take a pretty tough stand with regard to crimes like rape. The 4th U.S. Circuit Court of Appeals, which upheld the district court's decision to throw out VAWA's hate-crimes provision, noted that Virginia courts' compliance with sentencing guidelines for rape is over 90 percent. Their compliance with sexual-assault recommendations is over 70 percent. "More revealing," the author of a concurring court opinion noted, "is the fact that the greater noncompliance in sexual assault cases can be attributed to the courts' treating sexual offenders more harshly than the guidelines recommend."

Virginia, in short, is not a good place to assault women or, the high court should agree, the Constitution's federalist principles.

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