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Last week the Supreme Court invalidated, by the narrowest of margins, a portion of the federal Violence Against Women Act of 1994 that created a federal cause of action for violence motivated by gender bias. Despite all the hand-wringing by legal commentators in the week since the decision in Brzonkala v. Morrison was handed down, the case was not primarily about violence against women. Existing state criminal laws against rape — with stiffer penalties than were provided under the new federal cause of action — and existing state tort laws remain in effect. Moreover, the provisions of VAWA creating federal criminal remedies to punish interstate crimes of abuse, including crimes committed against spouses or intimate partners during interstate travel and crimes committed by spouses or intimate partners who cross state lines to continue the abuse, are still valid.
Rather, Brzonkala was about the fundamental structure of our constitutional system of government, about which level of government in that system has the primary obligation to protect the health and safety of our citizens, and about limits on the power of the national government imposed by the Constitution. Most importantly, the case was about whether those limits, and the rule of law itself, would be upheld.
Over the past decade, the Supreme Court has reinvigorated the Founders' vision of a constitutional system based on a division of the people's sovereign powers between the national and state governments. In New York v. United States, for example, the Court recognized that the principle of reserved powers underlying the Tenth Amendment serves as a barrier to the exercise of power by Congress. In Printz v. United States, the Court recognized that the principle was grounded not so much in the text of the Tenth Amendment but in the word "proper" of the Necessary and Proper clause, as informed by the overall structure of the Constitution and the numerous clauses that recognize the retention of sovereign powers by the States. This same idea of state sovereignty has been given voice in the parallel cases arising under the Eleventh Amendment.
Yet for our nation's Founders, the division of sovereign powers was not designed simply or even primarily to insulate the states from federal power. It was designed so that the states might serve as an independent check on the federal government, preventing it from expanding its powers against ordinary citizens. And it was designed so that decisions affecting the day-to-day activities of ordinary citizens would continue to be made at a level of government close enough to the people so as to be truly subject to the people's control.
Congress was delegated only specifically enumerated powers over subjects of truly national concern. It was not given a general police power to control the ordinary, local activities of the citizenry.
In enacting VAWA, Congress purportedly acted pursuant to its power "to regulate commerce . . . among the States" as well as its power to insure that no State denied its citizens the equal protection of the laws. Neither of these powers provides constitutional authority for the broad intrusion by Congress into the traditional powers of the states.
The Violence Against Women Act was not a regulation of commerce and it was not a law that gives effect to some regulation of commerce (much less a "necessary" and "proper" one). Just five years ago, in United States v. Lopez, the Court forcefully reiterated that the commerce power had limits, despite the vast expansions of that power that were pushed through during the New Deal and in which an earlier Court had been forced to acquiesce.
To have construed the commerce clause as broadly as did Congress when it enacted the Act and as did the Clinton administration in its arguments before the Court, would have rendered meaningless any remaining vitality to the primary check on federal power envisioned by the founders — the doctrine of limited, enumerated powers. Moreover, by essentially rendering superfluous the tort law of all 50 states (and, if the principle be taken to its next logical step, the criminal law as well), Congress had intruded upon the powers reserved to the States in a way that made previous Congressional intrusions look like child's play.
Nor did the Civil War-era 14th Amendment afford to Congress the powers it claimed. The 14th Amendment bars the state governments from denying to people within their jurisdictions the equal protection of the laws. It does not operate against private citizens. Yet in enacting VAWA, Congress authorized civil suits against private citizens, not against the state governments whose supposed denials of equal protection were the putative basis for the exercise of Congressional power. Even if such a remedy might be permissible in some circumstances, it simply is not constitutionally permissible when there was no underlying violation by the State.
So, for the founders, and under the Constitution they actually adopted, Brzonkala should have been an easy case. What is the real surprise is that the four dissenting members of the Court would have ignored these clear constitutional limitations and effectively permitted Congress to operate without any constitutional restrictions at all.
