ACSBlog: The Blog of the American Constitution Society

Column by Vanessa Volz, Blog Editor

In the ground-breaking 2000 case, United States v. Morrison, the Supreme Court was presented with a constitutional challenge to 42 U.S.C. 13981, the provision of the Violence Against Women Act of 1994 (VAWA) that gives victims of gender-motivated violence a private right of action against their assailants. In a 5-4 decision, the Court struck down the law, holding that the Commerce Clause did not provide Congress with the authority to enact the civil remedy portion of VAWA, since the provision was found not to be a regulation of activity that "substantially affected" interstate commerce; and secondly, because the enforcement clause of the Fourteenth Amendment did not provide Congress with authority to enact the provision.

Justice Thomas concurred with Chief Rehnquist's opinion, writing that "the very notion of the 'substantial effects' test under the Commerce Clause is inconsistent with the original understanding of Congress' powers and with this Court's early Commerce Clause cases . . . . Until this Court replaces its existing Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress appropriating state police powers under the guise of regulating commerce." This opinion, should it ever become law, would invalidate massive swaths of federal law.

According to the majority opinion in Morrison, Congress may regulate any act which has a "substantial effect" on interstate commerce, a holding with which only Justice Thomas disagrees. This Commerce Power is perhaps the most comprehensive of all powers granted to Congress, and is essential to many civil rights statues. In Katzenbach v. McClung, for example, the Warren Court upheld a federal prohibition on whites-only lunch counters, holding that such discrimination posed significant burdens on "the interstate flow of food and upon the movement on products generally." Without the Substantial Effects Test, the future of this prohibition is uncertain at best.

Moreover, Thomas's reference to VAWA as a state police power rather than as a form of regulating commerce discredited extensive Congressional hearings that revealed how gender-motivated violence is an overwhelming national problem, which substantially affects interstate commerce by impeding the travel, employment, and other economic activities of its victims.

In Morrison, a college student filed charges against two varsity football players whom she accused of raping her in her dormitory room shortly after the start of her freshman year. The plaintiff withdrew from the school, Virginia Polytechnic Institute, and brought her suit after learning that the football players would not be disciplined by the college. When the defendants then challenged the constitutionality of the Violence Against Women Act, the federal government intervened in the suit to defend the law. The plaintiff argued that causing her withdrawl from an academic institution, which would provide her with an education to pursue employment, was an ideal example of how interstate commerce was impeded by her gender-motivated injuries. The Court, however, disagreed. "By striking down this remedy, the Court has usurped the legislative function of Congress, ignored the facts they found, and substituted its own views for theirs," said Kathy Rodgers, President of the NOW Legal Defense and Education Fund.

With Thomas and four other justices declining to extend the enforcement clause of the Fourteenth Amendment to enact VAWA, "the unfortunate consequence of a series of political decisions harking back to Reconstruction" occurred, said Jack Balkin, a law professor at Yale. The 14th Amendment is arguably the natural home of civil rights legislation, as it guarantees equal citizenship, and it gives Congress power to enforce equality rights. Balkin elaborates, "We should recognize what the framers of the 14th Amendment intended: Congress has an independent power and obligation to promote and protect equal citizenship and civil rights." Therefore, if Congress believes that a law is necessary and proper to promote equal citizenship, it should have the power to pass it "without using the fiction that inequality affects interstate commerce."

The effects of Morrison have undermined civil rights generally and women's safety issues in particular. "The Rehnquist Court's ruling in U.S. v. Morrison is a setback for women's rights and a triumph for those that seek to roll back 30 years of federal civil rights law under the guise of states' rights," said Kathy Rodgers. "The Court has slammed shut the courthouse door, wished women good luck, and sent us back to the states for justice."