The Federal Rape Rap
If I were a first-grade teacher, I’d have my students put on a Constitution Pageant. I’d dress up the First Amendment kid to look like fire in a crowded theater. I’d have the Second Amendment kid carry an Uzi. I’m not sure what I’d do with the poor kid who has to play the Bill of Attainder, but I would definitely dress up the Commerce Clause kid as Stretch Armstrong.
You won’t know Stretch Armstrong unless you were a kid in the ‘70s, or had a kid in the ‘70s. Just so we can all be on the same page here, let me explain that Stretch Armstrong was a muscled male action figure–G.I. Joe on steroid shakes–whose body could be tugged and pulled like rubber taffy.
Article I, Section 8 of the Constitution (the “Commerce Clause”) gives Congress the right to meddle in states’ affairs as long as the statute in question purports to regulate interstate commerce. Since the late 1930s, the Commerce Clause has been stretched and tortured to expand federal powers into areas–including farmers’ consumption of their own wheat–involving neither interstate activity nor commerce. In a 1964 case involving the refusal of the Heart of Atlanta Motel to comply with the 1964 Civil Rights Act, the Supreme Court held that any establishment catering to interstate travelers, or serving food purchased out-of-state, could be comfortably regulated under the federal Commerce Clause power.
Sneaky …
Since most of us think the desegregation cases were long overdue, we often overlook the fact that the poor Commerce Clause was tortured beyond recognition to get us there. By the ‘80s, Commerce Clause jurisprudence had turned Stretch Armstrong into melted mozzarella.
Enter the Supreme Court under Chief Justice Rehnquist–a court that’s all about curbing federalism. It’s about limiting mushrooming federal powers and letting the states be as backward, narrow-minded, and parochial as they please. The trend began in 1995 in United States vs. Lopez, when–for the first time in 60 years–the court invalidated a federal statute (the Gun-Free School Zones Act) as overreaching the scope of Congress’ powers.
Today they are poised to do it again. The cases are United States vs. Morrison and Brzonkala vs. Morrison, and by the time you read this, you will have already heard Nina Totenberg say “Brzonkala” enough times to know that it’s not pronounced as it’s spelled.
Morrison concerns the Violence Against Women Act, a 1994 federal law, which, among other things, created a private civil cause of action against anyone committing a crime of violence motivated by gender. (And no, no one supplied any answers today to the question of what sorts of rape might not be motivated by gender.) That section of VAWA is being challenged as beyond the scope of Congress’ Commerce Clause powers, because it punishes purely private, non-economic activity–rape.
Because Commerce Clause power has become a legal fiction, the attempt to unstretch it and corral it into some bounded, principled thing is bound to be fraught with other legal fictions. Oral argument today is a snuffling, wheezy quest for a limiting principle on federal powers. As the protesters from the National Organization for Women demonstrate on the sidewalk outside (“2-4-6-8: Stop the violence, stop the hate”), inside the justices are carefully counting out how many hypothetical federal statutes they can cram on the head of a pin.
Julie Goldscheid–Christy Brzonkala’s attorney–explains that Congress made extensive findings before enacting VAWA–bone-chilling findings about the magnitude of violence directed at women, and the apathy, or at least inefficacy, with which the state criminal justice systems handle it. But Justice Scalia is not interested in congressional findings or the purposes of the act. He wants to know why the act is limited to gender-based violence. He wants to know why Congress cannot enact a federal Robbery Law or federal Murder Law under its Commerce Clause authority.
Goldscheid explains that the states requested federal help in this matter. Thirty-eight state attorneys general testified before Congress. Thirty-six states signed an amicus (friend of the court) brief detailing the toll taken by violence against women. How unutterably bizarre that the high court and a rapist are “protecting” the states against federal assistance sought by the states themselves.
Solicitor General Seth Waxman rises to speak on behalf of the United States. Immediately, Justices Rehnquist, Kennedy, and Scalia are clambering all over him for a theoretical limit on federal Commerce Clause power. Waxman lays out a four-pronged test cobbled together from the holding in United States vs. Lopez. Indeed, throughout his presentation, Waxman is in the uncomfortable position of having to argue that the United States won something in Lopez–as if some meaningful jurisprudential lesson might be read into the skid marks left after Rehnquist pulled the brake on the barreling train that was federal power.
Michael Rosman, defending Antonio Morrison, the young man who was sued under VAWA in 1995, does an astonishing job of drawing limiting principles on Commerce Clause powers–so much so that at times it appears as though he’d like to disband Congress altogether. When asked by Justice Breyer for a line between “local and interstate acts,” Rosman replies that only economic activities should be subject to federal Commerce Clause authority. Breyer asks: What about federal drug laws? Rosman backs down and concedes that the federal government may regulate some non-economic conduct.
When Congress passed VAWA, it found that domestic violence caused $3 billion worth of economic harm to women each year due to employee absenteeism alone. Justice Souter asks Rosman why the $3 billion finding does not represent economic harm. And Justice Stevens is not happy with Rosman’s definition of commerce–since it would bar the federal government from proscribing marijuana grown in one’s own backyard.
Justice Kennedy asks how it is that the federal government’s intercession to protect the 14th Amendment rights of blacks unable to achieve equal protection in a biased system is permissible, while intercession to protect the rights of women is not. To which the answer–never given–is: Because it’s 2000 baby, not 1964. And because the reckless, sloppy, well-intentioned Warren court is gone. The Rehnquist court sits high, high up on its wall and guards the boundaries between state and federal. It clarifies, refines, and revises the tests. And it never shines its light on the broken people anymore.
Christy Brzonkala sits in the back of the gallery this morning. In 1994, when she was a freshman at Virginia Tech, Brzonkala was raped in her own dormitory by Antonio Morrison, a varsity football player. After he did so, Morrison allegedly bragged that he liked “to get girls drunk and f— the s— out of them.” Brzonkala sought help from the university rather than the state criminal system. The Virginia Tech “Judicial Committee” found Morrison guilty of assault and suspended him for two semesters–with the suspension deferred by the provost until after he graduated. Morrison was thus able to play football for Virginia Tech. Brzonkala dropped out.
If I were a first-grade teacher, I’d have my students put on a Constitution Pageant. And I’d worry about the little girls. I’d teach them not to rely on their universities, or their state courts, or that champion of the underdog–the U.S. Supreme Court–to make the world a fairer place for women. I’d teach them to play football.
