- The Washington Times - Wednesday, May 17, 2000

"The 'constitutionally mandated balance of power' between the States and the federal government was adopted by the Framers to ensure the protection of 'our fundamental liberties.' " So said the U.S. Supreme Court in 1985. The question for the court this week was whether it would continue to abide by this principle notwithstanding the temptation to violate it in the name of a good cause: doing justice to alleged rape victims. The good news is that it did defend the principle and the Constitution albeit by the barest of margins.

At issue in Brzonkala vs. Morrison was a 1994 incident in which Virginia Tech student Christy Brzonkala claimed two football players at the university sexually assaulted her. For whatever reason, Ms. Brzonkala did not report the incident for seven months. The players contended that the sex was consensual, and a state grand jury convened to hear the case refused to return indictments against the players.

In 1995, Ms. Brzonkala filed suit in federal court against the players under the 1994 Violence Against Women Act (VAWA), which had taken effect in 1994. In federal court, however, the issue was less whether the players had violated the law than whether Congress had the authority to pass such legislation in the first place. Both the federal district court and the 4th U.S. Circuit of Appeals said it did not; lawmakers had unconstitutionally relied on police powers reserved for the states. Hence Ms. Brzonkala had no claim against the players under VAWA. She took her case to the Supreme Court.

By a 5-4 margin, however, the high court sided with the lower courts and the players. Writing for the majority, Chief Justice William Rehnquist noted that under the Constitution, the Founders had authorized Congress to act according to limited, enumerated powers. By what constitutional authority did lawmakers choose to regulate violence against women? The power to regulate interstate commerce. What's the connection between rape and interstate commerce? Well, said Congress, rape deters potential victims from traveling interstate or from transacting business in places involved in interstate commerce. Mr. Rehnquist found this connection between violence and commerce "attenuated" at best. If accepted, Mr. Rehnquist said, such reasoning would allow Congress to regulate any crime as long as its aggregated impact had substantial effects on employment, production, transit or consumption. We do not want to go there.

The liberty that comes of spreading authority between federal and state governments constitutionally, rather than allowing it to reside in one all-powerful central jurisdiction, depends on the Supreme Court's ability to keep these principles straight.

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