Constitutional Opinions: Bill's Fickle Feminists
Rabkin, Jeremy
CONSTITUTIONAL OPINIONS by Jeremy Rabkin Bill's Fickle Feminists I t is hard to remember now. But let's try. Back before Monica, there was a major political force called feminism. And it was...
...The December appellate ruling certainly does not record any suspicious personal weaknesses of Ms...
...And so werethe patrons of feminist rage...
...School officials at Virginia Tech declined to treat the incident as rape...
...If the full court finally does endorse the district court's ruling against VAWA, the case will probably go before the Supreme Court next year...
...As readers may recall, the trial court had rejected Christie Brzonkala's claim on the grounds that VAWA was an unconstitutional extension of federal power...
...federal balance...
...The opinion mentions no fewer than six times that the defendants in the Brzonkala case were football players...
...Haven't we heard that before somewhere...
...Vinson claimed that she had been coerced or cajoled into sex with her branch manager at the bank some forty or fifty times, while the manager claimed that none of this had happened and anyway Vinson was a slutty dresser and was prone to smutty fantasy and she lost her job because she overstayed her sick leave, not because of anything to do with sex...
...The 1994 Violence Against Women Act (VAWA) made it a federal offense to commit violence against women when motivated by "gender animus...
...The statute is a monument to feminist ideology...
...Most challenges, so far, have come down the other way, but the constitutional problem is hardly frivolous...
...The opinion rightly does not mention their race (they happen to be black, while Brzonkala is white...
...Chamberlain recalls that her boss told her "If you worked out, you'd have a great body," and "My women are special...
...The decided cases are an encyclopedic catalogue of nasty allegations about sex practices in the workplace— usually invoked by a former employee who now recalls that the office atmosphere was unbearably sexualized...
...The abandoned female victim can bring her own case under VAWA...
...So in Milwaukee, the local U.S...
...Cumpiano recalls that, after she had a child with her supervisor (who was married to someone else), lots of people at the office were whispering about her behind her back...
...Maybe the Supreme Court can straighten it all out...
...A few years ago, a municipal fire depaihnent was caught on this hook when it allowed a calendar withpinup pictures to be displayed...
...But perhaps all of this is too abstract...
...The American Spectator • April 1998 61...
...Call the Anita Hill inquest an aberration, if you like...
...Last year, President Clinton invited Christie Brzonkala to a White House conference on hate crimes and they subsequently exchanged admiring letters about how much each one had inspired the other...
...But the opinion plays hard on the feminist stereotype that football players are likely to commit rape and then be shielded by authorities—and this protective screen must be ripped down...
...Feminists decried the Court's ruling as a betrayal of the right to abortion...
...A three-judge panel of the court of appeals reversed, but the entire fourth circuit promptly vacated the ruling and agreed to rehear the appeal...
...It does not cover the stalker who loves women too much or the mugger who loves women's handbags too much, but only those who act from class-based hatred of women (or men)—as a federal court may come to understand this bizarre criminal sub-specialty...
...Back in 1993, for example, the Supreme Court rejected the notion that anti-abortion protesters could be reached under a post-Civil War statute aimed at "conspiracies" to deprive a "class of persons of their civil rights...
...Abortion clinics are singled out for special federal protection, whether they need it or not...
...Aren't there special constitutional problems when the boss is the president...
...Morgan recalls that before he was fired, a "co-worker stood next to him in the restroom and 'peeped' at [his] 'privates" and also "hung around him a lot...
...Is separation of powers a more fundamental principle than federalism...
...That is the legal regime feminists have demanded and what they have won—in the rest of the country...
...That is, you can't say it in federal court...
...So they must be tough enough to tangle with football players...
...They say it was a consensual party...
...The Supreme Court had struck down dozens of statutes for upsetting the federal balance before it overturned a single one for interfering with separation of powers—and cases of the former type still far exceed the latter...
...risks making a whole catalog of ordinary state crimes" into special federal offenses, thus upsetting the "fragile...
...Two federal district judges and two federal appeals court judges have since held that the law does indeed exceed the powers of Congress, trenching on powers reserved to the states under the Constitution...
...And it will be a telling case in the strange new world of post-Monica morality...
...So there are constitutional scruples and there are constitutional scruples—and legal fads and pet causes...
...Justice Kennedy warned that "essential considerations of federalism are at stake" and "a false step...
...And what about the accuser...
...In its 1986 ruling in Mentor Savings Bank v. Vinson, the Supreme Court endorsed the new doctrine—over the objections of the Reagan Justice Department and at the behest of Catharine MacKinnon, feminist legal guru and public scold, who argued the case for the appellant, with supporting briefs from a dozen feminist advocacy groups...
...A local grand jury refused to treat it as rape...
...JEREMY RABKIN is a professor of government at Cornell University...
...In fact, along with VAWA, the same crime-fighting Congress of 1994 enacted a measure prohibiting federal courts from allowing testimony about the past sexual practices of alleged rape victims...
...Nonetheless, feminists were ready to embrace Christie Brzonkala, on her own say-so...
...While feminists now echo Clintonite admonitions against rushing to judgment and playing on prejudice, the December decision of the fourth circuit panel—written by a Clinton appointee —was still playing by the previous feminist rules...
...Even Brzonkala's VAWA filings in federal court have never been adjudicated on the merits, as the case was immediately side-tracked into legal disputes over the constitutional validity of the statute...
...All three of these "harassment" cases wound up on the bench of the First Circuit Court of Appeals in 1990, where jurists worthy of the Supreme Court (like David Souter and Stephen Breyer) puzzle over abstruse questions of jurisprudence —when not reviewing such titillating office gossip in sexual harassment filings...
...Less than two years ago, the Clinton Justice Department—to the great acclaim of feminist organizations—persuaded the Supreme Court that women were plenty tough enough to be cadets at VMI...
...As recently as last December, it was against feminist etiquette to inquire...
...Of course, that was back when the judicial process was supposed to be an essential check on the vagaries of public opinion because elected politicians, like ordinary prosecutors and state judges and jurors and voters, were also riddled with gender bias...
...attorney invoked FACE in 1995 to prosecute six anti-abortion protesters who blocked access to a clinic for four hours, interfering with appointments of twelve patients —before being hauled off by city personnel...
...Of course, actual violence, with what-ever motive, is already quite definitely a crime in every state...
...Last December, a federal appeals court overturned the district court ruling in Brzonkala v. Virginia Tech...
...It was a classic he-said, she-said: Ms...
...It is rather late in the day to complain about making a federal case over sex secrets at the office...
...You can't defend accused rapists or harassers by saying the accusers are sluts and bimbos...
...Nor is it true that harassment regulations only cover those coerced into sexual contact...
...The Supreme Court agreed that Vinson—and MacKinnon—had a case, even if there was no economic injury and no retaliation or coercion was involved...
...The FACE statute purports to rest on congressional power to regulate interstate commerce, but requires no showing in the particular case that interstate commerce was at all involved...
...Brzonkala claims that she was raped by two fellow students, whose room she entered late at night without knowing their names...
...A federal district judge in Connecticut recently explained that by bringing a "civil rights action" under VAWA, the plaintiff acts as "a private attorney general...
...60 April 1998 • The American Spectator to abortion clinics...
...The case has been cited more than a thousand times since then in published court decisions, which means it has been invoked tens of thousands of times in filings that were settled before trial...
...Feminists and other Clinton allies who now see such problems with an independent counsel usurping presidential authority saw no problems with special feminist measures, usurping the constitutional authority of state and local governments...
...They have also made this quite incredible charge about federal courts, too—but never mind that...
...The following year, feminists persuaded Congress to enact a special new addition to the federal criminal code, the Federal Access to Clinic Entrances Act (FACE), which singles out anti-abortion protesters for federal prosecution...
...Why did this need to be a federal case...
...The statute is virtually unique in the federal criminal code in requiring no "predicate" of connection to interstate commerce...
...The point, we are told, is that an independent counsel invites a witch hunt, because it operates outside the ordinary system of prosecutorial resource limitations and priorities, obsessing over a particular "case" to "get" the target...
...So let us look back at that era when Democrats were still the majority in Congress, Hillary was still co-president, and feminists were still in the saddle on their policy hobby horses...
...I like to put them on a pedestal...
...But look at mainstream practice...
...Every state has laws that already prohibit such protest tactics as blocking access How quickly they've forgotten what they're all about...
...An office where the top guy seeks sexual satisfactions from interns—and the rest of the staff has to worry about bimbo eruptions—is just the sort of office that would risk a law suit, spreading all the seamy details before the courts...
...In the early 1980's, the Equal Employment Opportunity Commission began to insist that the existing ban on sex discrimination in employment should now be understood as a prohibition on office practices "offensive" to women...
...Are you getting all this down, Justice Ginsburg...
...When state prosecutors fail to act against rape or assault because the victim is a mere woman and the rapist or mugger is in the old boys club—being a male—there is VAWA to the rescue...
...What made Mentor Savings Bank was its endorsement of the theory that an employer may be financially liable merely for tolerating an offensive environment...
...Feminists insisted that VAWA was necessary as a federal backup because state criminal justice systems do not take violence against women seriously...
...In other words, we can't trust the actual attorney general or public prosecutor, so we need to have a separately empowered advocate for the public interest in suppressing gender animus —who will be free of the bias infecting the actual public prosecutors...
...Brzonkala...
...How was it at all different from the federal prosecution of Alfonso Lopez for carrying a gun into a school zone—in the case that led the Supreme Court to declare the Gun Free School Zone Act an unconstitutional assertion of federal power...
...And now also presidents...
...But this prohibition was enacted in the era when feminists demanded that sexual offenses be brought to federal court...
...Who knows where Clintonized feminism will be by next year...
...And it was everything which you're now not supposed to be —at least if you're a Friend of Bill (or one of the paid spin-meisters...
...Let's start with the seemliness of prying into private affairs...
...Now we settle these matters in opinion polls...
Vol. 31 • April 1998 • No. 4
