Academic journal article Harvard Journal of Law & Public Policy

Yes, Virginia (Tech), Our Government Is One of Limited Powers

Academic journal article Harvard Journal of Law & Public Policy

Yes, Virginia (Tech), Our Government Is One of Limited Powers

Article excerpt


The Framers of the Constitution designed the national government to be one of limited powers. Distrustful of the accumulation of power in any single body, the Framers provided for the division of powers both within the national, or general, government, and between the national government and the state governments. The separation of powers among the national government's legislative, executive, and judicial branches requires each branch to secure the acquiescence of the other two for the successful implementation of any policy, while the federalism that divides power between the national and the state governments prevents either from obtaining totalitarian control over the citizenry by limiting the authority of each to particular realms.(1) In this sense, "a double security arises to the rights of the people. The different governments will controul each other; at the same time that each will be controulled by itself."(2)

The Constitution limits the national government by granting it certain enumerated legislative powers(3) and providing that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."(4) By giving the national government specific powers, and not a general legislative power, the Framers made clear that "an act of Congress is invalid unless it is affirmatively authorized under the Constitution."(5)

Last Term in United States v. Morrison,(6) the United States Supreme Court reaffirmed this basic principle of American government. The Court, in a five-to-four opinion written by Chief Justice Rehnquist, held that the provision of the Violence Against Women Act ("VAWA" or "Act")(7) giving victims of gender-motivated violence a private damages remedy(8) was unconstitutional. The Court rejected arguments that VAWA was authorized under the Commerce Clause(9) or Section 5 of the Fourteenth Amendment.(10) The Court found that although violence against women affected the national economy, such violence was in no way "commercial." Penalizing those who committed violence thus lay beyond the powers of the national legislature to regulate interstate commerce.(11) The Court also rejected the claim that the Act enforced the Fourteenth Amendment, reasoning that the Amendment protects against discriminatory action only by states. The protections of the Fourteenth Amendment "erect[] no shield against merely private conduct, however discriminatory or wrongful."(12) As VAWA penalized purely private violent conduct, the Court did not give weight to claims that the states had violated women's rights by being indifferent to gender-motivated violence.(13)

Morrison reaffirmed that legislation justified under the Commerce Clause will be sustained if the legislation regulates "the channels of interstate commerce," "the instrumentalities of interstate commerce, or persons or things in interstate commerce," or "those activities having a substantial relation to interstate commerce."(14) The Court thus declined to repudiate years of Commerce Clause jurisprudence that accepted national regulation of activities "substantially" affecting interstate commerce.(15) As Justice Thomas argued in his Lopez concurrence, this position cannot be squared with the text of the Constitution. Article I, Section 8, Clause 3 allows Congress to regulate activities that are, not those that affect, interstate commerce.(16)

The substantial effects test, however, raises the questions of how substantial an effect on interstate commerce is required for Congress to regulate a particular activity, and which body is to determine that sufficiency. In passing VAWA, Congress collected "a mountain of data ... showing the effects of violence against women on interstate commerce."(17) Morrison held that despite a presumption in favor of the constitutionality of congressional statutes, Congress's research and conclusion that violence against women substantially affected interstate commerce were insufficient to save VAWA from a constitutional challenge. …

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