The abstract doctrines of federalism and states' rights will soon have a concrete impact on the way in which the U.S. combats violence against women. On Jan. 11, the Supreme Court heard arguments on a section of the Violence Against Women Act (VAWA) that lets some victims sue their attackers in federal court. Given the trend in recent decisions involving federal and state powers, the Court is likely to strike down this portion of the law, and there are good reasons for it to do so. Rather than bemoan the court's conservatism or wait for a reversal, the U.S. government as well as the states should redouble their efforts. State governments should confront the inadaquecies in the criminal codes and enforcement and create greater recourse for victims of sexual violence, rather than relying on constitutionally questionable means to prevent such violence.
The Supreme Court has, in the past 10 years, attempted to reverse the centralizing trend of earlier courts and shift power away from the federal government to the states, often claiming that such a scheme better satisfies the "original intent" of the framers. Recently, in its zeal to protect states' "sovereign immunity," the Court's five-member majority has begun to overstep the bounds of original intent, ruling in two cases that the 11th Amendment, which protects states from federal lawsuits "by Citizens of another State," also protects them from suits by their own citizens over violations of federal labor law. The Republicans who complain that "judicial activism" has turned judges into legislators would do well to look at their own appointees.
Given such a track record, there is little reason to imagine that the five justices who have so energetically devolved power to the states will accede to the federal regulation of gender-related violence. However, no matter how conservative the Court, there are some laws that should be struck down on their own merits.
The 1994 VAWA allows federal suits for "gender-based animus-motivated violence," a category which includes some rapes; the case heard Jan. 11 was filed by Christy Brzonkala, a former student at Virginia Polytechnic Institute who says she was raped by two football players. Although acts of personal violence are traditionally the domain of state criminal law, the U.S. defended VAWA as a legitimate extension of Congress' power to regulate interstate commerce, providing statistics that gender-based violence costs the economy $3 billion a year in medical expenses and lost productivity.
The commerce clause has been well used for the last half-century as a tool to combat discrimination. However, no matter how tenuous the connection, the discrimination Congress countered usually involved an economic activity, such as running a hotel or amusement park that denied access on the basis of race. The Court has wisely resisted expansion of the clause into wholly non-commercial activity, such as violence. Murders and thefts could have the same economic effects as gender-related violence; indeed, just about any activity--marriage, child-rearing, education--when viewed in the aggregate has a substantial effect on the economy. A decision legitimizing the VAWA would legitimize the federal regulation of all of these areas. In our democratic system, shifting the responsibility for such basic services from one government to another is not a decision that should be made by a single court ruling.
There is no question that violence against women is a serious problem. But there are better ways of addressing it. Curiously, the attorneys general from 36 states who asked that the law be upheld did so citing systematic biases in their own departments and judiciaries against the victims of gender-related violence. The 14th amendment guarantee of "equal protection under the law" does not mean that Congress may intervene on the grounds of state incompetence. A policy of reliance on the federal government--whose judges and juries may be equally biased--obscures the states' responsibilities to reform their own justice systems. The right way to fight gender-related violence is through better use of the VAWA's provisions promoting training of judges and police officers, not through shifting all the blame and transferring all the power.