Was it law or poetry?

By John Leo

U.S. News & World Report, May 29, 2000

From press accounts, you might think that the Supreme Court did something amazingly reactionary in striking down part of the Violence Against Women Act (VAWA). Justice David Souter filed a dissent saying the decision reminded him of the obstructionist court of the 1930s that nearly blocked the New Deal. Yale law professor Judith Resnik was even more alarmed. She said the decision reminded her of old-time Supreme Court decisions that saw slavery as a personal matter, not a concern of the federal government.

Calm down, everybody. All the court did was tell Congress that it can’t cite its control over interstate commerce as an excuse to claim federal jurisdiction over local crimes such as battering or rape. “Gender-motivated” violence is not an economic activity. Pretending that it has something to do with commerce between the states is legal poetry, not common sense or good law.

The court overturned a single provision of VAWA that allowed women who are victims of crimes “motivated by gender” to sue their attackers in federal courts in addition to state courts, where they have always been able to sue. Deciding that the Commerce Clause can’t be turned into an eight-lane highway leading to the federalization of everything is a reasonable, even obvious, conclusion. Under the clause, Congress has the power to regulate interstate commerce, transportation, and communication. With the legal revolution ushered in by the New Deal, that power expanded to cover even local activities that had a “substantial effect” on interstate commerce. “Substantial” gradually expanded toward “trivial” until the court called a halt to the process in the Lopez gun-zone case of 1995.

Police power. Citing the Commerce Clause, Congress passed a law outlawing guns within 1,000 feet of any school grounds. The court overturned it, saying that bearing arms is in no sense an economic activity that substantially affects interstate commerce. The majority said to uphold the government’s expansive reading of its power in Lopez, the court “would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” The same logic applied to the federal suits under VAWA. So does the same anxiety about expanding federal police power by piling up dubious inferences.

In his VAWA dissent, Justice Souter gamely argued that Congress had made its case for a broad economic effect of “gender-based” violence against women. He wrote: “The sufficiency of the evidence before Congress to provide a rational basis for the finding cannot seriously be questioned.” Actually it can. Congress’s conclusion that “gender-based” antifemale violence–and even the threat of such violence–has a major impact on interstate commerce is not supported by any evidence at all. It is logical to assume that some female victims, like some male victims, are too traumatized or discouraged to function fully at work. But a claim of substantial impact on interstate commerce requires more than the assertion that it must be so, stated over and over.

Congress’s back-up argument is based on the equal protection clause of the 14th Amendment, which prohibits discrimination against women. Many of the numbers Congress compiled are shaky or false. For example, Congress found that “95 percent of all domestic violence victims are women.” This simply isn’t true. Overwhelming evidence, in study after study, shows that men are victimized by domestic violence at least as often as, if not more than, women. No evidence backs up other familiar factoids accepted so docilely by our vaguely guilty male Congress, including the finding that “as many as 50 percent of homeless women and children are fleeing domestic violence” and “20 percent of hospital emergency cases are related to wife battering.” These are “advocacy numbers,” established by constant repetition but anchored in nothing. Justice Souter uses several such bogus statistics in his dissent.

But suppose all these famous factoids were true. They still would fail to establish how much male-on-female violence is motivated by gender bias. VAWA is a hate-crime law for women. Like all hate-crime legislation, it imposes a burden to show that bias against a class of people was the true motive for crime. Women are the target of a little more than one third of America’s violent crime. How much of this is “gender motivated”? Congress has no idea. It turned up no statistics, because no credible ones exist.

Final point: This decision is being hailed (or condemned) as a conservative victory. But federalism cuts across the agendas of left and right. The logic of this case might undermine the Endangered Species Act, but it might also strike down a national law banning partial-birth abortion. In that case, we would surely see a lot of liberals discovering the virtues of limited government and deploring the poetic use of the Commerce Clause.