Does Rape Violate the Commerce Clause?

Women Can No Longer Seek Civil Damages Under the Violence Against Women Act

Last spring the U.S. Supreme Court struck down as unconstitutional a key section of the 1994 Violence Against Women Act (VAWA). That section allowed a victim of rape or other violence “motivated by gender” to sue the perpetrator for civil damages in federal court for violating her civil rights.

The act was part of the 1994 Omnibus Crime Bill. It established both a federal right to be “free from crimes of violence motivated by gender” and a federal remedy for violating that right: namely, a new tort claim that included both compensatory and punitive damages. The federal claim was not meant to replace punishment by state criminal statutes but to supplement them.

In 1995, Christy Brzonkala became the first person to sue under the act, over a rape that allegedly occurred in her dormitory room while she was a student at Virginia Polytechnic Institute. The men accused—two football players named James Crawford and Antonio Morrison—had been cleared by both a university judicial committee and a criminal grand jury. Nevertheless, Brzonkala brought a case against them in federal court. In 1999 the U.S. Court of Appeals for the Fourth Circuit (Richmond, Va.) ruled against her, saying that Congress had exceeded its constitutional authority in passing VAWA.

U.S. v. Morrison eventually came before the Supreme Court. In its decision the Court stated that the issue under consideration was “Did Congress exceed its powers when it gave victims of sex crimes the right to file civil lawsuits against their attackers?” The Court answered yes. Writing for the 5-4 majority, Chief Justice William H. Rehnquist concluded that a federal civil remedy for such crimes could be justified by none of the constitutional provisions invoked by those who defended the act.

Two constitutional arguments were used by defenders: first, that violence against women interferes with interstate trade and thus violates the Commerce Clause by which Congress may regulate interstate commerce to ensure the free flow of goods and services, and second, that the Fourteenth Amendment protects citizens against violation of due process, which occurred in Brzonkala’s case because the state courts were indifferent to violence against women. Both parts of the Constitution had also been used to support the act during lengthy congressional hearings.

The Commerce Clause and VAWA

The Commerce Clause (Article I, Section 8, Clause 3) delegates to Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The clause gave a broad grant of authority over commerce to Congress without clearly delineating restrictions on that power. The purpose was to overcome the tendency of states to interfere with trade through tariffs, which had caused great problems, especially for the smaller states, under the Articles of Confederation. Interstate commerce was deemed to require uniform laws to encourage nationwide trade. According to Roger Pilon in the Cato Handbook for Congress (, “Framers gave Congress the power to regulate—or ‘make regular’—commerce among the states. It was thus meant to be a power primarily to facilitate free trade.”

Court decisions dating from the days of Franklin Roosevelt’s New Deal have interpreted the clause so as to grant Congress the right to regulate virtually anything that affects interstate commerce. As a result, Pilon observes, Congress used the regulation of commerce among the states “for all manner of social and economic purposes, actually frustrat[ing] the free flow of commerce.” For example, the Church Arson Prevention Act of 1996 gave the federal government power to prosecute those who burned down churches on the grounds that such arson impeded “individuals in moving interstate.” With such broad interpretations, Congress has repeatedly used the Commerce Clause to regulate non-economic conduct that crosses state lines, such as child custody. Advocates of states’ rights have opposed Congress’s expanding power under the Commerce Clause because the increased federal authority often infringes on areas that have traditionally been under the jurisdiction of the states.

In recent years, the Court has begun to take a different view, producing a tug of war between it and Congress. In 1995 the Court ruled (5-4) in U.S. v. Lopez that Congress had exceeded its authority under the Commerce Clause in passing the Gun-Free School Zones Act of 1990, which prohibited the possession of a firearm within 1,000 feet of a school. In defending the act before the Court, the Clinton Justice Department argued that guns and crime disrupt education, which in turn disrupts the employment opportunities of students and thus interstate commerce. Chief Justice Rehnquist, again writing for the majority decision, stated, “Under the theories that the Government presented, . . . it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where states historically have been sovereign. Thus if we were to accept the Government’s arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.” (In September 1996, Congress passed a revised Gun-Free School Zones Act, confining it to guns that pass through interstate commerce.)

VAWA was another example of an expansive reading of the Commerce Clause. Advocates stated that violence against women and fear of violence reduced women’s productivity and mobility as employees. Women commonly lose their jobs after being injured, it was argued. The cost of sexual violence to the national economy was estimated at between $5 billion and $10 billion.

In 1999 the Fourth Circuit Court of Appeals rejected this reasoning on the grounds that to extend the Commerce Clause “beyond the context of statutes regulating economic activities and uphold a statute regulating noneconomic activity merely because that activity, in the aggregate, has an attenuated, though real, effect on the economy, and therefore presumably on interstate commerce, would be effectively to remove all limits on federal authority, and to render unto Congress a police power impermissible under our Constitution.”

The Supreme Court agreed.

The Fourteenth Amendment and VAWA

The second argument for the constitutionality of VAWA was based on the Fourteenth Amendment, by which Congress may protect citizens against state violations of their rights. Section 1 of the amendment states in part, “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” During the 1994 congressional debates on the act, dozens of studies were cited to support the contention that women were hindered from seeking relief for crimes such as rape because state judicial systems did not consider them as serious as other violent crimes. Brzonkala claimed that the state courts had denied her due process because of their indifference to violence against women. Thus she sought relief in the federal courts.

Chief Justice Rehnquist disagreed with this logic and found, instead, that the Fourteenth Amendment prohibited discrimination only by the states and not by private individuals. The proper defendant under the amendment would have been the state of Virginia, not Morrison. Moreover, he held that following the logic of VAWA would “completely obliterate the Constitution’s distinction between national and local authority.”

Political observers may be astonished to hear politically correct feminists appealing to the Constitution, which they often vilify as a “dead white male document” drafted by slaveowners. In fact, the Commerce Clause and the Fourteenth Amendment were arguments of convenience and part of a well-established campaign to use civil litigation as a weapon against “gender-motivated” violence. VAWA attempted to use federal remedies if state ones proved unsatisfactory. In her book Toward a Feminist Theory of the State, Catharine MacKinnon describes what she calls “Feminist Jurisprudence,” writing, “Civil remedies in women’s hands would be emphasized.”

The civil court system—which deals with private harms—affords at least two advantages for PC feminists. First, it allows women to punish “abuses” that fall outside the criminal statutes. Second, it has less stringent standards than the criminal court system.

To address the first advantage: men who are not criminals, and so are of no concern to the police, can nevertheless be punished through civil money damages. For example, sexual harassment laws are rooted in Title VII, the fair employment provision of the Civil Rights Act of 1964, which provides civil penalties. Perhaps the first example of radical feminist use of the civil courts comes from the Minneapolis Anti-Pornography Ordinance of 1983, which would have given individual women or groups of women the right to sue producers or distributors of pornography for damages. (The ordinance was vetoed by the mayor.) Through such local measures, radical feminists have tried to equate pornography with discrimination on the basis of sex, thus bypassing First Amendment concerns.

The second advantage of the civil courts is that they are far less stringent than criminal ones. This factor is particularly important for crimes such as rape that are notoriously difficult to prove. In a criminal court the alleged victim must sustain her case beyond a reasonable doubt. Civil court requires only a preponderance of the evidence, which can mean as little as 51 percent certainty. Moreover, in civil court, the rules of evidence are more relaxed. Therefore, a rape case dismissed by a criminal court may well succeed in a civil action. In the matter of Brzonkala, the defendants did not even reach criminal court: a grand jury found insufficient evidence to indict. Nevertheless, VAWA allowed her to bring civil suit against them. In short, it allowed her to pursue a criminal case that was too weak to be admitted into criminal court.

Statutory Vagueness

Ominously, VAWA does not clearly delineate what constitutes “gender-motivated violence,” allowing the term to cover conceivably any situation of abuse that involves sexual hostility. This is promising for feminists who routinely consider even words and images to be a form of sexual violence. Such logic led Supreme Court Justice Sandra Day O’Connor to state, “Your approach . . . would justify a federal remedy for alimony or child support.” Arguably, that is precisely what radical feminists wanted and hoped to achieve through VAWA.

Such feminists want a war on “gender violence” similar to the War on Drugs—that is, zero tolerance backed by maximum force. To this end, VAWA attempts to create a special class of crime defined by ideology. A major tenet of radical feminism is that violence against women is part of a political campaign that men as a class inflict on women as a class. The fact that real violence against women—murder, battery, rape—has been steady and steeply declining since 1990 in no way affects their passionate cry for harsher enforcement. Facts are often irrelevant to ideology. In refusing to expand congressional power under the Commerce Clause, the Supreme Court decision inadvertently dealt an unexpected blow to this feminist agenda. It was unexpected because the Supreme Court tends to overturn rather than to uphold earlier rulings in the cases it hears. Moreover, Justice O’Connor has a strong track record of ruling in favor of “women’s rights,” yet she voted with the majority.

No wonder National Organization for Women (NOW) president Patricia Ireland felt betrayed. She declared, “The Supreme Court has said not just that women’s right to be free from violence is not protected by the U.S. Constitution but that the Constitution actually prohibits Congress from providing such protection. I’ve never seen a more compelling argument for a constitutional amendment guaranteeing women’s equality.”

NOW further proclaimed, “The Rehnquist Court’s ruling in U.S. v. Morrison is a setback for women’s rights and a triumph for those that seek to roll back 30 years of federal civil rights law under the guise of states’ rights . . . . For them, ending violence against women takes a back seat to preserving states’ rights to deal with violence—or not deal with it at all.”

Impact of U.S. v. Morrison

With the likes of NOW and Hillary Clinton calling for a restoration of VAWA, the issue is not likely to vanish from the political scene. But it is a mistake to view the Supreme Court decision as an attack on women in any manner. As Senator Joseph R. Biden, Jr., an advocate of VAWA, declared, “this decision is really all about power: who has the power, the court or Congress?”

The case was a victory for those who wish to limit congressional power. In rejecting VAWA, the U.S. Court of Appeals stated, “Such a statute . . . cannot be reconciled with the principles of limited federal government upon which this nation is founded.” Morrison constitutes a stop sign in the recent political drive toward nationalizing selected crimes, a return to fundamental constitutional considerations and to the rule of law. William Mellor, president of the Institute for Justice, explained that the decision addressed “whether or not the Congress operates under enumerated and, therefore, limited powers; or whether it has authority to basically regulate any activity it sees fit.”

The most loudly debated question surrounding the Morrison decision will be its impact on violence against women. Some have argued that VAWA’s civil-rights remedy would not have benefited many women anyway. In cases of rape, for instance, the perpetrator rarely has real assets that can be attached in a judgment. Arguably, the real beneficiaries of VAWA would have been women who bring “deep pocket” defendants to court: for example, well-to-do women in divorce proceedings who might use the law as leverage, or women who have complaints against entities such as universities.

VAWA’s greatest value to its proponents may be as an ideological symbol. It symbolizes and institutionalizes the political belief that women must receive special protection from men. When confronted with violence and its redress, VAWA said that women are not to be treated as individuals but are to be accorded privileges as the members of a class. Yet Curt Levey, an attorney for the Center for Individual Rights (CIR), which represented Antonio Morrison, commented that “although today’s decision will be viewed as a historic setback for feminist advocacy groups, it is a victory for American women, whose safety is best preserved by strengthening local law enforcement, rather than by relying on federal bureaucrats.”

The Supreme Court’s decision was not a blow to women’s equality or safety, which was not at issue. It was an attempt to check the seemingly infinite and unenumerated powers claimed by Congress. As Michael E. Rosman, CIR general counsel, put it, “The court is now requiring Congress to toe the constitutional line.”

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