History does repeat itself: once again, the Anti-Federalists are dictating American legislative policy. From within their hallowed chambers, the Rehnquist Court is pushing the doctrine of states' rights with the unabashed fervor of Thomas Jefferson and his Democrat-Republican cronies of two hundred years ago. Indeed, the question has become what exactly the Court may be willing to sacrifice in order to make its point.
Luckily an answer to that question is imminent, as it is anticipated that the Court will soon announce its most crucial federalism decision to date in U.S. v. Morrison. At stake: civil rights for women, under the 1994 Violence Against Women Act (VAWA).
For those unfamiliar with the bill, VAWA's major provisions are designed to extend the right to be free from gender-motivated violence by both criminalizing interstate acts of gender violence and making it possible to try such cases in federal civil courts. They have sparked a tempestuous debate among legal scholars as to whether or not Congress illicitly blurred the line between state and federal jurisdiction by improperly applying the 14th Amendment and the Commerce Clause.
On Monday night the debate came to Harvard as Charles Fried, former U.S. Solicitor General and Harvard Law School professor, and Catharine A. MacKinnon, a professor of law at the University of Michigan squared off on the VAWA inside a packed Ames Courtroom. Though the evening's preferred language was esoteric legalese, the major arguments came through loud and clear. Fried described a slippery-slope scenario, whereby the precedent set by VAWA would allow Congress to circumvent state sovereignty indiscriminately. MacKinnon dismissed these concerns out-of-hand, postulating that civil suits remedy flaws in state legal systems that have allowed gender violence to be "kept private and kept silent" for so long.
MacKinnon's stance is by far the stronger, but she and other VAWA advocates need to understand that on such matters one needs to tread carefully. Too often, supporters of civil rights bend to the cloying, putrescent of political correctness instead of relying upon substantive judicial precedent and hard facts. Even the most genuine, visceral appeal against gender violence cannot serve as the basis for the kind of far-reaching, personal consequences that exist under VAWA.
Fried's constitutional arguments are that gender violence does not directly affect the national economy (thus VAWA is an invalid exercise of Congress lawmaking power under the Commerce Clause), and that Congress has no authority to use the 14th Amendment to regulate the behavior of individuals (because the 14th Amendment is designed to rein in states, not citizens). Both of these claims can be disproved with empirical evidence. Congress funded a four year fact-finding mission before passing VAWA, where it was determined that employers lose $3 billion a year to domestic violence as a result of workplace absenteeism. That figure is sufficiently high enough to indicate that gender violence has a profound effect on the economy.
As for the second argument, 41 states officially registered their support for VAWA when arguments were heard for U.S. v. Morrison in January, with 21 of them placing individually-researched gender bias studies on the record. Much of this testimony was to the point that the civil rights remedy provided by VAWA would be helpful and to state that since victims are allowed to pursue the case through the criminal state courts concurrently with any federal civil case, there was no real sovereignty issue.
VAWA, therefore, has garnered strong support both from Congress and from the states themselves. It deserves the support of Harvard students as well ˆ we should not fail to recognize the significant impact VAWA can have on our lives. The aforementioned U.S. v. Morrison concerns a rape case at Virginia Tech: when denied proper legal proceedings at the university, the plaintiff was able to use VAWA to seek damages. Acknowledged or not, rape and other forms of gender violence constitute a problem that penetrates without compunction the ivy walls surrounding our own campus. Both enduring and watching others endure the turmoil of such violence is already a devastatingly painful experience; without the rights guaranteed by VAWA, the process of seeking reparations for our peers in the public sphere can be almost unbearable.
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