Violence Against Women Act: Recognizing A Federal Civil Right to be Free from Violence, The

Georgetown Law Journal, Feb 1998 by McTaggart, Kelli C

Moreover, in these civil rights cases, private behavior limited a group's ability to travel and to participate in the marketplace which in turn substantially affected interstate commerce.142 The same is true of the VAWA. Violence against women limits women's ability to travel and to participate in the marketplace, which in turn substantially affects interstate commerce.143 In Heart of Atlanta Motel, the Court also recognized that Congress was "legislating against moral wrongs" yet this "rendered its enactments no less valid."144 In those cases, the importance of racial equality transformed Commerce Clause analysis because of the pressing need for a federal remedy. The importance of a federal civil remedy to combat gender-based violence should lead to the same result. At the very least, the VAWA should not be struck down solely because it also legislates against moral wrongs.

This rejection of the commercial/noncommercial distinction is not a rejection of Lopez. If one examines the three factors identified in Lopez, (jurisdictional nexus, congressional findings, and the commercial/noncommercial distinction), they all relate to the same underlying point-Congress must identify the effect on interstate commerce. In the Gun Free School Zones Act, Congress provided no evidence of any effect on commerce. There was no required nexus to interstate commerce, there were no congressional findings, and the activity was not commercial in nature. Without at least one of these three factors present, there is no evidence of any link to, let alone effect on, interstate commerce. Thus, as the Hartz court found, it is the effect on interstate commerce with which the Court is ultimately concerned. Therefore, as long as Congress provides evidence of an activity's substantial effect on interstate commerce, either through a jurisdictional tie or congressional findings, the regulation should be upheld.145

If the Supreme Court's Commerce Clause jurisprudence has demonstrated anything, it is that our conception of what constitutes commerce is changing and, in turn, that what affects commerce has also changed. As Philip Frickey argues, "[t]he larger lesson of the New Deal Supreme Court ... is that a thorough, sustained effort of factual reeducation-for example, about the nationwide interrelation of the American economy and the `felt necessities' of federal regulation of it-may, in time, reorient the thinking of the judiciary sufficient to work an evolution in Constitutional law." 146 Furthermore, because the driving force behind Lopez and prior Commerce Clause cases is the substantial effect an activity has on commerce, courts addressing the VAWA should follow Doe and Hartz and focus on the substantial effects of violence against women on interstate commerce and on Congress's rational basis for regulating that violence. This focus will permit federal courts in future cases to uphold statutes when the activity may not be "commercial" in nature, but nonetheless "substantially affects" interstate commerce. In addition, this focus will permit the courts to defer to the determinations and authority of a co-equal branch of government charged with making the laws: the Congress. Given the underlying rationale of the Court's Commerce Clause jurisprudence, the extensive congressional findings, and the importance and urgency of the issue, the commercial/noncommercial distinction should not pose a barrier to the constitutionality of the civil remedy provision of the VAWA.