A Nineteenth Amendment Defense of the Violence against Women Act
Lawsky, Sarah B., The Yale Law Journal
In 1993, over half a million American women were raped.(1) A quarter of those women were raped by an intimate: a husband or ex-husband, a boyfriend or ex-boyfriend.(2) Women in America are six times more likely than men to be the victim of a violent crime committed by an intimate,(3) and women are more likely to be injured in violent incidents committed by intimates than in incidents committed by strangers.(4) Violence is the leading cause of injuries to American women ages fifteen to forty-four, more common than car accidents, muggings, and cancer deaths combined.(5) Four million American women are the victims of domestic violence each year.(6) Three-quarters of American women will be victims of violent crimes sometime during their lives.(7)
Faced with such facts, Congress passed the Violence Against Women Act (VAWA) in 1994.(8) The many provisions of the Act were intended, as the Act's name suggests, to respond to "the escalating problem of violence against women."(9) Some of these provisions are uncontroversial; certainly, nobody would question Congress's power to provide, as the Act does, extensive federal funding to states to help states discourage violence against women.(10) Other parts of the Act have been challenged as unconstitutional but have never been struck down by any court and seem clearly to be valid exercises of congressional power. For example, courts have repeatedly upheld as a valid exercise of Congress's power under the Commerce Clause(11) those sections of the Act(12) that make it a federal crime to commit domestic violence or to violate a protective order after crossing state lines with the intention to commit such an act.(13)
The Act also creates a federal civil rights remedy for victims of gender-motivated violence.(14) This provision's constitutionality is much less clear. Most courts that have faced the question of [sections] 13981's constitutionality have ruled that it is a valid enactment under Congress's Commerce Clause powers.(15) However, the Fourth Circuit and at least one federal district court have held that the civil rights provision of VAWA is not a valid exercise of congressional power under either the Commerce Clause or the Fourteenth Amendment.(16)
In this Note, I argue that the civil rights provision of VAWA is a valid enactment under the Nineteenth Amendment, which granted women suffrage. Part II demonstrates that the Nineteenth Amendment is about more than voting alone; the Nineteenth Amendment also forbids the state from interfering with women's political citizenship and full political participation. Next, in Part III, I argue that a culture of violence against women interferes with women's rights to be political citizens. For a person to be a political citizen, she must be able to participate, free from domination, as a self-determined equal, in the deliberation that is essential to a republican form of government. But self-determination and equality are difficult, if not impossible, in the face of an omnipresent threat of violence. A culture of violence against women therefore interferes with women's ability to participate fully in political life. Part IV sketches out the specific requirements for congressional action under the Nineteenth Amendment--that the legislation must be remedial and that the state must play a role in the constitutional violation to be remedied--and establishes that VAWA fulfills these requirements. In particular, I argue that the state helps create a culture of violence against women because the state creates marriage, which, when viewed in historical context, is shown to be an institution that perpetuates women's subordination and violence against women. I conclude that VAWA is valid legislation under the Nineteenth Amendment.
II. THE MEANING OF THE NINETEENTH AMENDMENT
The Nineteenth Amendment(17) means both less and more than is commonly thought. It means less in that it guarantees nobody the right to vote; instead, it ensures only that the state will not interfere with the right to vote because of a voter's gender. …