- The Washington Times - Tuesday, May 16, 2000

The Supreme Court's 5-4 decision on Monday invalidating the civil suit provision in the Violence Against Women Act (VAWA) is a victory for constitutional government because it reaffirms the bedrock principle that the national government is one of carefully enumerated, and thus limited, powers. Even more important, however, the Supreme Court has cautiously moved one step closer toward re-establishing what the appropriate limits of the national government are under our Constitution.

The Supreme Court noted in passing that every civilized system of justice provides a remedy to individuals who suffer the type of brutal rape alleged by Christy Brzonkala. At issue in United States vs. Morrison was whether it was within Congress' power to add another federal tort cause of action for "gender-motivated violence against women."

The court acted under a fundamental principle of constitutional law frequently ignored by judicial activists and seldom taught anymore in American schools, that Congress has no inherent power to pass legislation on whatever subject it deems expedient or important. Congress has the authority to legislate only in areas specifically listed in the Constitution.

Here, it is important to distinguish between two types of problems that affect everyone in America. A nationwide problem, such as common-law crime, is one that exists in every state. As a matter of constitutional law, that tells you nothing about whether it is a state, national or shared problem. A national problem, by contrast, is one that the national government is authorized in the Constitution to do something about.

Despite some disagreements about the scope of power that should be given to the national government, there was no principle more universally agreed upon or central to the ratification of the Constitution than the notion that the national powers thus enumerated were finite. The 10th Amendment was added to reinforce this point, but was thought unnecessary by Madison and other federalists. The careful enumeration was supposed to be the real check on the national government's power. If that failed, the syllogism of the 10th Amendment would add little.

Although the Civil War era amendments did expand Congress' constitutional powers, it was not until the Supreme Court largely surrendered its role in enforcing enumerated powers in 1937-42 that the limits on Congress' powers were fictionalized. The Commerce Clause was and is the most abused font of supposed power. Congress' power to "regulate Commerce with foreign Nations, and among the several States…" was read to extend over any activity, when aggregated with all similar activity, that "substantially affect" interstate commerce. The nadir of Commerce Clause jurisprudence was Wickard vs. Filburn (1942), in which the court held that Congress could regulate the amount of wheat a farmer could grow for his own farm consumption (lest other farmers get the same idea and stop buying wheat on the open market).

In United States vs. Lopez (1995), the Supreme Court struck down the federal gun-free school zone statute as exceeding Congress' Commerce Clause power. The Lopez decision signaled an end to the chaos theory of Congress' power, i.e., that any activity with an attenuated effect on interstate commerce is within Congress' commerce power. The court announced it would make an independent determination of whether the effect on interstate commerce was substantial. Yesterday, the Supreme Court concluded that the tort provision in VAWA was not authorized under the Interstate Commerce Clause or section 5 of the 14th Amendment. The opinion is significant in reinforcing the Lopez holding, which was thought to be a tenuous decision. But it also goes further in defining the limits on the national government's power.

Some lawyers had mistakenly or intentionally misread some language in a concurring opinion in Lopez by Justices O'Connor and Kennedy. The majority opinion in Morrison was written by Chief Justice Rehnquist and joined by Justices O'Connor, Scalia, Kennedy, and Thomas. There can be no further misunderstanding about the view of these five members of the Court. Of the majority, only Mr. Thomas wrote separately to add that he would go further and overrule a line of post-New Deal cases that apply any form of the substantial effects test.

Second, the court's majority clarified the importance of its conclusion that the criminal activity that Congress sought to regulate was noneconomic in character. The court declined to adopt "a categorical rule against aggregating the effects of any non-economic activity," but it was careful to note that it had never upheld a statute that relied on such an effect.

The court also rejected Congress' findings in VAWA that the aggregate effect of violence against women had a substantial effect on interstate commerce. Despite the voluminous hearing record and the large dollar figure attached to this type of crime, the court said that Congress had employed a method of "but-for" reasoning the court had rejected in Lopez. This court said this reasoning proved too much because it recognized no limiting principle to Congress' power.

Finally, the court clarified that the "Constitution requires a distinction between what is truly national and what is truly local." The "aggregate effect on interstate commerce" argument is simply not enough to sweep in noneconomic activity that has been traditionally and solely the province of state regulation.

Todd Gaziano is a senior fellow in legal studies at The Heritage Foundation.

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