Feminist firebrand Catharine A. MacKinnon and former Solicitor General Charles Fried squared off last night to argue the constitutionality of a women's rights law presently under review by the Supreme Court.
The 1993 Violence Against Women Act (VAWA) created a "civil right to be free from gender motivated violence," according to MacKinnon, but Fried, who is also Carter Professor of General Jurisprudence emeritus at Harvard Law School (HLS), argued Congress exceeded its Constitutional power by passing the law.
The discussion, "Arguing the Violence Against Women Act: Two Views," played out in the vast Ames Courtroom in Austin Hall at the law school.
Early in the night, spectators knelt in the aisles and banks of cameras, microphones and recording equipment jammed the rear of the courtroom, but as the two-hour debate turned from overarching ethics to legal minutiae, departing crowds left the hall half-full of spectators fanning themselves with legal briefs.
The constitutional question pivots on a civil right provision in VAWA that allows civil damages to be awarded to victims of crimes "committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender."
Critics of VAWA claim Congress has moved outside its enumerated constitutional powers and legislated on a state issue: battery.
MacKinnon facetiously broke her argument into two sections: "Part One: Why I am Right" and "Part Two: Why Charles is Wrong."
She then argued that making the law was a Congressional power within the commerce clause of the Constitution and the Fourteenth Amendment.
Congress can invoke the commerce clause, which allows it to regulate commerce between the states, because gender violence limits victims' ability to participate in interstate commerce, she said.
She cited "a massive body of evidence," supporting the link between gender-based violence and interstate economics as justifying Congress' passing a violence bill under a commerce clause.
"Half the population cannot work or travel when they are being beaten and targeted," she said.
The massive body of evidence is comprised of Congressional findings from early 1990s studies on the economic impact of gender-based violence.
Fried dismissed this evidence with a quote from a law textbook that brought a laugh from an audience made up mainly of law students.
"Congressional findings can always be produced," he said. "Violence against women, unless in the case of pimps enforcing control over their stable, is not economic."
In a Supreme Court brief that Fried co-authored, he argues that if the commerce clause were interpreted so liberally, it would have to include not only gender-based crimes but "all crime...all activities which inflict injuries unintentionally…insomnia, obesity and a lack of exercise."
When asked to identify one state crime that would not be placed in the federal domain under such an interpretation, MacKinnon refused.
"I'd rather not confine myself," she said.
MacKinnon also cited the Fourteenth Amendment guarantee of equal protection under the law to all citizens as a guarantee of the law's constitutionality. She argued that the bias against women in state justice systems deprives them of equal protection and that Congress can use its power granted by the Fourteenth Amendment to remedy those violations with the VAWA.
Fried said the Fourteenth Amendment is strictly for states and state actors and recounted precedents in his favor.
Though he acknowledged the horrors of gender-based violence and the need for severe punishment of criminals who commit it, Fried saw VAWA more as politics than jurisprudence.
"The federal criminal code cannot be allowed to be turned into a billboard" he said.