Recent commentary from National Journal:
Media: Oprah Waldo Emerson, by William Powers (May 24, 2000)
To the media class, Oprah is the epitome of life's bottomless cruelty.
Political Pulse: Ho Hum, the Shootings Go On, by William Schneider (May 24, 2000)
So far, a tidal wave of public support for gun control has not swept over American politics.
Legal Affairs: How the Embargo Hurts Cubans and Helps Castro, by Stuart Taylor Jr. (May 19, 2000)
Easing the embargo, if done with care, could change Cuba for the better. It could hardly make things worse.
Political Pulse: Ratchet Back a Bit, Al, by William Schneider (May 17, 2000)
Americans may not be eager for change, but they may think Gore is going over the top against Bush.
Social Studies: Forget About China -- Can Trade Be Saved From the WTO?, by Jonathan Rauch (May 16, 2000)
For anti-trade protesters, the WTO is a godsend. It is the Conqueror Worm of global capitalism.
Legal Affairs: Elián: An Excess of Certitude and Ideology on All Sides, by Stuart Taylor Jr. (May 12, 2000)
Elián's story may have generated more righteousness than Monica's, Ollie's, or Alger's. Why do I have doubts?
Political Pulse: A Race Roiled by Unknowns, by William Schneider (May 10, 2000)
Mayor Giuliani's health problems may or may not dramatically alter New York's Senate race.
Legal Affairs: Death Row Law -- A Maze of Technicalities, A Ray of Hope, by Stuart Taylor Jr. (May 5, 2000)
The court put some teeth in the principle that death row inmates have a right to effective counsel.
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Legal Affairs:Why You Can't Sue Your Rapist in Federal Court
The 1994 Violence Against Women Act provided (among other things) that victims of rape, domestic abuse, and other "crimes of violence motivated by gender" could file federal civil rights lawsuits against their alleged assailants. The measure was nothing if not popular. Championed by President Clinton and feminist groups, it sailed through the House and Senate.
But popularity is no guarantee of Supreme Court approval. In its most dramatic move since 1935 to rein in congressional power, the Court struck down this civil rights provision by a 5-4 vote on May 15, in U.S. vs. Morrison. In doing so, the Justices threw out a lawsuit by Christy Brzonkala, who claims that two Virginia Tech football players raped her in their dorm room in 1994. She had sued them under VAWA after the university declined to discipline the men -- who denied the rape charge, although one said he'd had consensual sex with Brzonkala -- and a Virginia grand jury had declined to indict them.
The usual five conservative Justices ruled that Congress had unconstitutionally intruded into the traditional domain of the states. The usual four liberals dissented. The usual feminist groups (and a "deeply disappointed" President Clinton) decried the decision as a blow to raped and battered women; one prominent feminist called it sexist. The usual conservative groups applauded it as a great victory for the Constitution and states' rights. And the usual questions lingered: How will this affect real people? What's going on behind the headlines and the legalese? Are the Justices interpreting the Constitution, or just grinding political axes? What will they do next?
Some answers:
• It will affect only a tiny minority of victims. The New York Times editorialized that the decision "left women more vulnerable to gender-motivated violence," but that's a stretch. Even sponsors of the VAWA have acknowledged that the civil rights provision was a largely symbolic gesture to show congressional concern about violence against women. Most men accused of such violence have little or no money with which to pay any damage awards. And men who are violent enough to risk both criminal prosecution and damage lawsuits at the state level -- all 50 states offer victims both remedies -- are unlikely to be deterred by the possibility of being sued in federal court too.
It may be true, as Congress found, that many state and local police, prosecutors, judges, and jurors still do not take women who complain of rape and domestic violence seriously enough. But if so, VAWA's federal damage-lawsuit remedy is pathetically inadequate.
• Conservatism is not always sexism. The Justices used "states' rights ... as a fig leaf for sexism," said radical feminist legal scholar Catherine MacKinnon in denouncing the Morrison decision. Said Martha Davis of the National Organization for Women Legal Defense and Education Fund, "We are extremely disappointed and concerned that the Court's continued march toward states' rights is cutting women out of the Constitution."
Rubbish. Justice Sandra Day O'Connor, an old-fashioned feminist, learned about sexism the old-fashioned way when law firms spurned her and her stellar Stanford Law School record because she was a woman. She has sided with feminists in virtually every big decision involving women's rights during her 19 years on the Court. But she has also been deeply committed to principles of federalism. So it was no great surprise that she provided the critical fifth vote in this case for striking down a law beloved by those modern feminists who see men oppressing women everywhere they look.
The Court was no more influenced by animus against women in Morrison than it was by sympathy for thugs in U.S. vs. Lopez, when the same 5-4 majority struck down a federal law making it a crime to have a gun in or near a school. The 1995 Lopez decision paved the way for Morrison by holding for the first time since 1935 that some activities are too local and remote from any economic transaction to be reached by Congress under the guise of regulating interstate commerce.
• It's not really about states' rights. Stressing that 36 states had urged the Court to uphold the statute, Justice David H. Souter wrote for the four dissenters that "it is ... not the least irony of these cases that the states will be forced to enjoy the new federalism whether they want it or not." A nice rhetorical point. But the real power struggle in this case was not between the states and Congress. It was between the Court and Congress. The dissenters would essentially abandon, as beyond the Court's institutional competence, any effort to enforce the Constitution's restrictions on what Congress can do in the name of regulating interstate commerce. Chief Justice William H. Rehnquist held for the majority that the Justices themselves will (for now, at least) insist on having the last word.
The Framers confined Congress to certain enumerated powers, including the power to regulate interstate commerce, mainly to protect not states but individuals from a distant, overbearing national government. A corollary goal was to protect those accused of crimes from being pursued in both state and federal court systems. So when the Court ruled in Morrison that gender-motivated violence has too insubstantial and attenuated an effect on commerce to be regulable by Congress, the immediate result was to protect the two accused football players -- who are presumed innocent until proven guilty -- from being hauled at their accuser's option into either federal or state court or both. The Court also rejected an argument that the statute was a valid exercise of Congress's power to enforce the 14th Amendment.
So it's something of a misnomer to call this a "states' rights" case, as many journalists (including me) have slipped into doing. True, the same 5-4 majority has moved, in a related line of decisions since 1992, to protect the states from being required to enforce federal laws, or being sued for damages for violating such laws. But the VAWA provision that the Court struck down did not regulate states at all. And the same statute gave the states some $1.5 billion for programs, such as rape crisis centers, to help women victimized by violence. No wonder most states like it.
• The conservative majority was animated by a vital principle. Critics see Morrison as the kind of "judicial activism" that conservatives love to deplore, but that's too simplistic. The Framers clearly did not intend to let Congress regulate everything. And if rape and domestic violence have a sufficient effect on interstate commerce to justify federal regulation, then so does all violent crime, and so do most other human activities. As Rehnquist pointed out, the Court has never gone so far as to uphold congressional efforts to penalize purely noneconomic intrastate activity in the guise of regulating interstate commerce. And the Court's efforts to draw a line in Lopez and in Morrison have hardly been radical. They neither overrule any prior decision nor pose a serious threat (unless radically extended in future decisions) to any major federal regulatory program.
Some thoughtful liberals recognize the force of such logic. "Try the common sense test," writes columnist Wendy Kaminer of The American Prospect. "When you think about a rape in a college dormitory, do you think about interstate commerce?" Adds Harvard Law professor Laurence Tribe: "I'm not confident of the right answer here, but I'm reasonably confident that, if the dissenters are right, then there are no judicially enforceable limits at all on the commerce power, [and] the basic compromise underlying the Constitution has come unglued."
• It ain't over. Souter stressed in his cogent dissent that it was "the Founders' considered judgment that politics, not judicial review, should mediate between the state and national interests as the strength and legislative jurisdiction of the National Government inevitably increased through the expected growth of the national economy." He also predicted that Morrison -- the latest chapter in a two-century-old struggle over federal power -- will not "prove to be enduring law." That echoes Rehnquist's prediction (made 15 years ago, in his dissent from a decision letting Congress set minimum wages for state workers) that his own broad view of state sovereignty will eventually "command the support of a majority of this Court."
Rehnquist's prediction came true, thanks largely to the 1988 election of President Bush, whose 1991 appointment of Justice Clarence Thomas gave the Chief Justice a fifth vote. Now another election is coming. And if Al Gore wins it, Souter may prove a prophet too.
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Stuart Taylor Jr. is a senior writer and columnist for National Journal and a contributing editor at Newsweek. This column appears every week in National Journal, a weekly magazine covering politics and government published in Washington, D.C.
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All material copyright © 2000 by The Atlantic Monthly Group. All rights reserved.
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