Jewish World Review May 24, 2000 / 19 Iyar, 5760
http://www.jewishworldreview.com -- WHAT CAN ONE SAY about The New York Times? Congress passes a law in 1994 giving women a federal cause of action for violent crimes and claims it is simply exercising its authority under the Commerce Clause of the Constitution because -- I'm not making this up -- violence makes women afraid to travel interstate. That (along with Congress's auxiliary crackpot theory) is rejected by the Supreme Court this week, and The New York Times goes ballistic.
Even The Washington Post -- whose editors are not exactly card-carrying members of the Federalist Society, but are not out of their minds -- editorialized: "(T)he court got it right. If Congress could federalize rape and assault, it's hard to think of anything it couldn't."
Meanwhile, the Times titled its editorial "Violence Against the Constitution." What Constitution is that exactly? The one at the Times that requires editorials to be completely, utterly wrong, day in, day out, without exception?
The Constitution being interpreted by the Supreme Court grants Congress strictly limited powers. You may have heard something about this -- they're called the enumerated powers, set forth mostly in Article I, Section 8, of the Constitution. There, the Constitution lists specific powers permitted the legislature, such as "to establish post offices and post roads," to "define and punish piracies and felonies committed on the high seas," to "declare war" -- that sort of thing.
If Congress's powers were not so limited, the country would not have needed to pass a constitutional amendment first banning "intoxicating liquors" and then another repealing the ban. Congress could have just passed a law accomplishing the same ends, if its powers were unlimited. Ditto with slavery: The 13th Amendment banning slavery's existence in the United States could have been effected by an ordinary federal law.
The basic idea behind the Constitution is that politicians are bad. Political power would be diversified so that ambition would counter ambition, and the country wouldn't end up with a Pol Pot, Stalin, Idi Amin, Castro, Hitler, or one of the many other charming heads of state to have graced this century's history. As one of my friends said after coming with me to tape the "Leeza" show (a show with lively audience participation): The framers of the Constitution were a lot smarter than the average American today, and we really shouldn't be fiddling with the document that allows a bunch of undeserving lunkheads to continue living in freedom more than 200 years later.
So anyway, back to the lunkheads in the 1994 Congress, their theory was that they could usurp the traditional police powers of the states and give women a federal cause of action in the Violence Against Women Act (VAWA) because the Constitution grants Congress authority -- and I quote -- "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."
If it seems to you that Congress has branched out a bit from regulating commerce with the Indians (and their few other enumerated powers), let's go over the framers' logic again: Politicians are bad. Like night follows day, therefore, politicians in Congress are constantly pushing the boundaries of their powers, and the Supreme Court occasionally lets them get away with it.
Still, as Chief Justice Rehnquist wrote in his unadorned fashion: "Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity." And "thus far in our nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature."
It's not as if the law prohibits Ted Bundy from reaching out to the Boston Strangler to form a nationwide syndicate for committing violence against women (based on their gender exclusively, please!). VAWA is directed at all interpersonal gender violence, including that conceived and executed within a single state -- and which is already punished criminally by the state.
Moreover, even accepting Congress's premise that their little law affects interstate by -- again I quote -- "deterring potential victims from traveling interstate," presumably fear of ALL violence would have that effect, and not just fear of violence that is motivated by gender animus.
Indeed, there is literally no activity that -- calculated on a national scale -- does not affect interstate commerce. Michael Rosman, attorney with the small but mighty public interest law firm, The Center for Individual Rights, argued the case against VAWA before the Supreme Court. He has observed that if the government's "aggregate effect" argument were accepted by the court, Congress could pass a law tomorrow mandating that all Americans drink a warm glass of milk before retiring every evening because of the impact of insomnia on the national economy.
The Supreme Court grasped his point, and rejected Congress's limitless Commerce Clause
theory. For this, The New York Times denounced the court for being "determined to reconfigure
the balance between state and federal authority." We will not have achieved that elusive and
perfect "balance," apparently, until we get our own
JWR contributor Ann Coulter is the author of High Crimes and Misdemeanors: The Case Against Bill Clinton.
05/22/00: Developmentally disabled Republicans