- The Washington Times - Tuesday, January 11, 2000

Today, the nation's highest court will consider the constitutionality of a key provision in the 1994 Violence Against Women Act (VAWA). Aimed at the twin evils of domestic abuse and sexual assault, VAWA's Subtitle C allows victims of gender-motivated violence to sue their attackers in federal court. Despite Subtitle C's laudable goals, the provision exceeds the federal government's lawful authority. Having regrettably concluded that Subtitle C is both unconstitutional and misguided, the state of Alabama has urged the Supreme Court to strike down the provision.

Because the Founding Fathers understood the danger of concentrated power, they limited Congress' authority to those powers specifically enumerated in the Constitution. All other power was reserved to the people and the states. Thus, even the most commendable federal statute is unconstitutional if it is not authorized by one of Congress' enumerated powers. As a result, Subtitle C's supporters including the Clinton Justice Department have labored to fit the provision under both Congress' power to regulate interstate commerce and its power to enforce the 14th Amendment. The fit is so forced, however, that even this Supreme Court with its sympathy for women's issues is unlikely to buy the argument.

Congress spent much time and money attempting to convince itself and the nation that Subtitle C is justified by the devastating effect domestic abuse and rape have on interstate commerce. This contention smacks of insincerity, while doing a disservice to women who suffer the true devastation wrought by these crimes. The logical stretch needed to make the constitutionally required connection between gender-motivated violence and interstate commerce would, if accepted by the court, leave no activity that Congress is without power to regulate. Congress could regulate sleep, for example, by finding that insomnia substantially affects interstate commerce by way of decreased productivity.

Because the Supreme Court is unlikely to take this logical leap, VAWA's supporters also invoke the 14th Amendment's guarantee of equal protection. Subtitle C, they claim, is actually a remedy for state discrimination against female victims of violence. Far from discriminating, the states, however, have been at the forefront of a dramatic increase in awareness and prosecution of domestic abuse and rape. In concluding that state gender bias provides a constitutional basis for VAWA, Congress was forced to ignore extensive testimony about the strides states are making in combating these evils. Even the 36 states that urge the Supreme Court to uphold Subtitle C concede that state efforts have been substantial, while also criticizing those efforts for failing to completely eradicate violence against women. The continuing existence of violence in our society is hardly proof of bias against its victims. In fact, statistics show that any bias that does exist runs in favor of not against women. For example, in cases of unprovoked murders of spouses, male prison sentences average more than twice as long as those for women.

It should come as no surprise that the states have led the way in battling domestic abuse and rape. The right of every American to be free from violence knows no gender and has been protected by the states since before there was a federal government. The safety of women and men is best protected by encouraging and strengthening state efforts, not by allowing the states to pass the buck to federal bureaucrats and judges.

It has been said that politics is as clearly on the side of Subtitle C as Supreme Court precedent is against it, but given the absence of state bias against women, the progress made by the states, and the redundancy of Subtitle C all 50 states allow women to sue their attackers in state court one wonders why it enjoys such political support, especially in Congress. The formidable political clout of women's groups plays a large role, but genuine frustration with violent crime also fuels VAWA's popularity. Thus, it's ironic that federal courts are now seen as the solution to eradicating domestic violence and rape, when time after time, those same courts have imposed limits on state and local crime-fighting efforts. Indeed, many of the leading Supreme Court cases establishing the rights of the accused including Miranda warnings, effective assistance of counsel, and freedom from unreasonable search and seizure have involved defendants accused of sexual assault. The point is not to criticize the limits imposed on law-enforcement. To the contrary, one of the strengths of our legal system is that individual rights can triumph over the popular will. Like the Bill of Rights, an equally important strength of our constitutional system, however, is federalism, which prohibits our central government exercising powers that are not enumerated in the Constitution.

VAWA supporters will likely dismiss Alabama's concerns as a lone dissent in a sea of states urging that the statute be upheld. Ironically, the commitment of those states to fight domestic abuse and rape even when it requires bending constitutional limits on federal power belies the claim that states are biased against women. Moreover, the very fact that states are so willing to sacrifice the individual liberty of their citizens to the behemoth of federal power underscores the Supreme Court's essential role in ensuring that popular laws don't trample on constitutional rights. Just as the rights of the accused are worth protecting, even when they impede a popular result, so too is the right to be free from federal power that exceeds its constitutional bounds.

Bill Pryor is attorney general of Alabama

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