- The Washington Times - Tuesday, May 23, 2000

The United States Supreme Court deserves a 21-gun salute. It arrested congressional mission creep in last week's arresting 5-4 ruling in United States vs. Morrison (May 15, 2000), which held a centerpiece of the Violence Against Women Act of 1994 unconstitutional. VAWA created a federal civil rights action for victims of state law crimes inspired by gender-bias against the criminal offenders whether or not the crimes had been prosecuted by state authorities or state civil remedies were readily available.

The Morrison precedent exemplifies separation of powers at its best, and reinforces the oft-forgotten lesson that the Constitution endowed Congress with a limited legislative mission; omnibus authority to fasten its vision of heaven on the nation was purposely withheld in recognition of political fallibility and the dangers of a too muscular central government. Nothing in human nature or experience for more than two constitutional centuries shakes confidence in that wisdom.

Violence against women is reprehensible. Every state in the nation makes it criminal, and exposes the culprits to civil suits for damages. Some enhance the punishment if the crime is motivated by gender animus. Congress, with visions of women voters dancing in its head, thought state law and law enforcement should be made of sterner stuff. Prolonged hearings were held in search of a constitutional sword, like Excalibur, to justify doing good through supplementary federal legislation. It fastened on two plausible candidates: the Commerce Clause and the 14th Amendment's prohibition of gender discrimination.

The former, enshrined in Article I, section 8, clause 3, deputes Congress as the steward over commerce … among the several states… . The nexus with criminal violence against women is neither immediately apparent nor intuitively obvious to the uninitiated in legal casuistry. Only a Pickwickian would perceive a commercial element in such unconsensual criminal brutality. But a headstrong Congress was undeterred. It purported to find a clear and present danger to interstate commerce with breathtaking reasoning that would crown Congress with virtual omnipotence: [Gender-motivated violence affects interstate commerce] by deterring potential victims from traveling interstate, from engaging in employment in intrastate business, and from transacting with business, and in places involved in interstate commerce; … by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.

In other words, the theoretical cornerstone of VAWA was boundless. Any non-commercial behavior with a derivative impact on the national economy no matter how remote and featherlike would be exposed to congressional regulation. Take marriage. The greater the number, the greater the demand for trousseaus that move in interstate commerce. Congress might thus prohibit any state residency or waiting-period restrictions on marriage licenses, and relieve newlyweds of state and local income and real estate taxes throughout matrimony. Or to slash national medical costs, Congress might mandate two hours of daily aerobic exercise for every able-bodied child or adult.

These hypotheticals are not remote cousins of VAWA; they are close siblings. How many women do you think are deterred from interstate travel because they are terrified by the prospect of gender-motivated violence? And who could deny that the absence of physical fitness dwarfs violence against women in the national medical cost equation?

Writing for the razor-thin majority in Morrison, Chief Justice William Rehnquist emphasized that if the VAWA commerce clause pivot were endorsed, Congress could regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption … and family law and other areas of traditional state regulation, since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant.

The chief justice, following the dictates of prudence and non-absolutism, declined to expound a dogmatic line between permissible and impermissible congressional regulation of interstate commerce. Hard cases might arise in the future, but the idea that the Founding Fathers, who worried deeply over a national government behemoth, meant to plant the seed of that apprehended evil in the commerce clause through the likes of VAWA is too farfetched to entertain.

Section 5 of the 14th Amendment anoints Congress with broad legislative discretion to remedy state action that unconstitutionally discriminates against women. In enacting VAWA, Congress found pervasive invidious state laxity and erroneous stereotyping and assumptions in the investigation, prosecution and punishment of crimes motivated by gender bias. Assuming the accuracy of the finding, however, the wrongdoers were state officials. Yet VAWA leaves them undisturbed. Its civil remedy is against the individual criminal without responsibility for the putative 14th Amendment violations. Chief Justice Rehnquist thus concluded that the VAWA remedy was too distant from the constitutional wrong in need of correction to fall within section 5's ambit.

Mission creep is not unique to Congress. It is endemic to all arms of the federal government, ranging from the Defense Department and the Central Intelligence Agency to the Department of Health and Human Services and the Department of Housing and Urban Development. AIDS in Africa, we are told in the wake of the Cold War, is an urgent national security matter, and gun manufacturer liability under state law is a matter for HUD because of its derivative impact on public housing tenants and costs. The Founding Fathers wisely safeguarded against such quixotic grasping to lower the risk of despotic government, even if some constructive federal intrusions would also be stymied. The Morrison ruling honored that long-headed tradeoff, and the nation is better off as a result.

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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