Crime, Congress And The Interstate Commerce Clause

USA Today (Society for the Advancement of Education), May, 2000 by Dave Kopel, Glenn Reynolds

MAYBE IT WAS a matter of timing (former White House intern Monica Lewinsky's book was first reaching the stores), but when a Federal appeals court declared the Violence Against Women Act (VAWA) unconstitutional in March, 1999, it didn't get much attention. Yet, it may have been the most important court case that year, because it sharply limits the ability of Congress to create new types of lawsuits and criminal laws. Interestingly, quite a few groups that should have been rejoicing over the decision weren't.

In 1994, the Clinton Administration managed to persuade Democrats and Republicans afraid of backlash from the Clarence Thomas/ Anita Hill Supreme Court confirmation hearings to enact VAWA, giving women a right to sue in Federal court on matters in which they already had a right to sue in state court. For example, state rape laws provide that the rapist can be sent to prison and that the victim can sue the rapist to recover direct financial losses (e.g., medical expenses) and for pain and suffering. VAWA piled a Federal remedy on top of that.

Accordingly, when college student Christy Brzonkala got very drunk one night and, by her account, was date-raped by two other students, she got to sue in Federal, rather than state, court. Instead of merely suing her alleged rapists, she also sued the college that all three attended, Virginia Polytechnic Institute.

However, nothing in the Constitution allows Congress to force Federal courts to hear lawsuits involving a dispute between parties from the same state. (There are a few exceptions, such as when a local government official attempts to interfere with a person's exercise of Federal civil rights.)

Congress does, of course, have the constitutional power "to regulate commerce ... among the several states." So, Congress claimed that VAWA was a legitimate exercise of the power to regulate interstate commerce. It is quite a stretch, though, to claim that the power to regulate the buying and selling of products across state lines includes the power to regulate drunken sex acts of college students. Brzonkala was not, after all, complaining that she had been hauled to West Virginia by her alleged assailants, nor were they acting for commercial motives.

Accordingly, the Fourth U.S. Circuit Court of Appeals ruled in the case of Brzonkala v. Virginia Polytechnic Institute that the power to regulate interstate commerce did not include the power to create VAWA. "We the People," the court's majority opinion began, "distrustful of power, and believing that government limited and dispersed protects freedom best, provided that our federal government would be one of enumerated powers, and that all power unenumerated would be reserved to the several States and to ourselves." Even if

a crime is motivated by "gender animus" (instead of the animus against the entire human race, which motivates most criminals), the criminal's intent doesn't turn the crime into an act of interstate commerce.

Moreover, even though all crime has some economic effects, the impact of crimes like drunken sex on interstate commerce is insignificant. Brzonkala's lawyers argued that fear of gender animus has an effect on interstate commerce by making women less willing to engage in various activities, thus damaging the national economy. The court didn't buy this argument. As it explained, to uphold VAWA on the basis of the assertion that crime indirectly affects interstate commerce would be to give Congress blanket authority to legislate on every conceivable subject, since everything has some incidental economic effect. To allow Congress to legislate on everything, the court observed, would be to destroy the U.S.'s constitutional system, which gives Congress power in just certain areas (such as patents, declarations of war, taxes, and interstate commerce).

Under the Constitution, all the other topics (like disputes between college students) are to be handled by the states, not the Federal government. To anyone reading the Constitution, this makes sense. Article I, Section 8, which outlines most of the powers of the Federal government, goes into considerable detail about specific powers--for example, to establish post offices and post roads, provide for bankruptcy laws, or coin money--that could have been left out if the Framers meant to create a government of general powers.

For that matter, Article I, which describes Congress' powers, makes it clear that it just has enumerated powers, because Article I indicates that "all legislative powers herein granted" (emphasis added) shall be vested in Congress. Not "all legislative powers that anyone can imagine," or "all legislative powers that seem like a good idea," but merely those "herein granted." The specific powers that the people gave to Congress through the Constitution are the only ones Congress has.

Even the Federalist Papers, which are, after all, a defense of increased Federal power, make it clear that criminal law enforcement would not come within the Federal sphere under the new Constitution. James Madison wrote that Federal powers "will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.... The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state."