Does Rape Violate the Commerce Clause?

By McElroy, Wendy | Ideas on Liberty, October 2000 | Go to article overview

Does Rape Violate the Commerce Clause?


McElroy, Wendy, Ideas on Liberty


Last spring the U.S. Supreme Court struck (down as unconstitutional a key section of the 1994 Violence Against Women Act (VAWA). That section allowed a victim of rape or other violence "motivated by gender" to sue the perpetrator for civil damages in federal court for violating her civil rights.

The act was part of the 1994 Omnibus Crime Bill. It established both a federal right to be "free from crimes of violence motivated by gender" and a federal remedy for violating that right: namely, a new tort claim that included both compensatory and punitive damages. The federal claim was not meant to replace punishment by state criminal statutes but to supplement them.

In 1995, Christy Brzonkala became the first person to sue under the act, over a rape that allegedly occurred in her dormitory room while she was a student at Virginia Polytechnic Institute. The men accused-two football players named James Crawford and Antonio Morrison-had been cleared by both a university judicial committee and a criminal grand jury. Nevertheless, Brzonkala brought a case against them in federal court. In 1999 the U.S. Court of Appeals for the Fourth Circuit (Richmond, Va.) ruled against her, saying that Congress had exceeded its constitutional authority in passing VAWA.

US. v. Morrison eventually came before the Supreme Court. In its decision the Court stated that the issue under consideration was "Did Congress exceed its powers when it gave victims of sex crimes the right to file civil lawsuits against their attackers?" The Court answered yes. Writing for the 5-4. majority, Chief Justice William H. Rehnquist concluded that a federal civil remedy for such crimes could be justified by none of the constitutional provisions invoked by those who defended the act.

Two constitutional arguments were used by defenders: first, that violence against women interferes with interstate trade and thus violates the Commerce Clause by which Congress may regulate interstate commerce to ensure the free flow of goods and services, and second, that the Fourteenth Amendment protects citizens against violation of due process, which occurred in Brzonkala's case because the state courts were indifferent to violence against women. Both parts of the Constitution had also been used to support the act during lengthy congressional hearings.

The Commerce Clause and VAWA

The Commerce Clause (Article I, Section 8, Clause 3) delegates to Congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The clause gave a broad grant of authority over commerce to Congress without clearly delineating restrictions on that power. The purpose was to overcome the tendency of states to interfere with trade through tariffs, which had caused great problems, especially for the smaller states, under the Articles of Confederation. Interstate commerce was deemed to require uniform laws to encourage nationwide trade. According to Roger Pilon in the Cato Handbook for Congress (www.cato.org/pubs/handbook/hb 105-3. html), "Framers gave Congress the power to regulate-or `make regular'-commerce among the states. It was thus meant to be a power primarily to facilitate free trade."

Court decisions dating from the days of Franklin Roosevelt's New Deal have interpreted the clause so as to grant Congress the right to regulate virtually anything that affects interstate commerce. As a result, Pilon observes, Congress used the regulation of commerce among the states "for all manner of social and economic purposes, actually frustrat[ing] the free flow of commerce." For example, the Church Arson Prevention Act of 1996 gave the federal government power to prosecute those who burned down churches on the grounds that such arson impeded "individuals in moving interstate." With such broad interpretations, Congress has repeatedly used the Commerce Clause to regulate noneconomic conduct that crosses state lines, such as child custody. …

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