Constitutional Opinions: Federalism vs. Feminism
Rabkin, Jeremy
CONST 1 TUTIONAL OP 1 N 1 ONS by Jeremy Rabkin Federalism vs. Feminism 0 ctober was "National Domestic Violence Awareness Month." You didn't notice? Perhaps that's because the White House did not...
...v. Lopez, the Supreme Court ruled this grandstanding measure unconstitutional...
...In its 1995 decision in U.S...
...But if state judges were so loyal to "the ancient mysogynistic myth that women secretly desire to be raped" (as Brzonkala's attorney put it), why expect anything better from federal judges or federal juries...
...In an earlier era, a white girl crying "rape" might have harped on the fact that her "assailants" were black...
...Perhaps this was a necessary gesture in return for piles of federal cash that flow to states for violence prevention and counseling programs under other (unchallenged) sections of VAWA...
...60 The American Spectator • December 1999/January 2000 show that it had "gotten the message" and did, too, "care," so it enacted an entirely superfluous federal statute to make hard cases into federal cases...
...17 S o if the Supreme Court follows its own precedents, it's likely to uphold the lower courts on Brzonkala...
...Readers will recall the Brzonkala case, described here exactly three years ago, following the initial ruling against VAWA by a federal district court in Virginia...
...Probably because they'd find such a campaign rather awkward...
...Without exception, the national media passed over this embarrassment with tactful silence...
...We keep hearing that the country wants to "move on" from the lamentable hypocrisies of the past year...
...The accused students were both on the football team—and therefore...well, the school should have known...
...Clinton aides knew full well that a man who stands credibly accused of rape—and declined to offer any evidence whatever to dispute the charge — is not in the best position to cry out for "awareness...
...This federal statute required state and local governments to grant exemptions or accommodations to people expressing religious objections to existing laws...
...To take the state attorneys general at face value, you'd think they were endorsing the feminist claim that states are so misogynist that they automatically side with perpetrators of sexual violence...
...In late September, just as the president was preparing to issue his "proclamation," the Supreme Court announced that it would hear the case of Brzonkala v. Morrison, testing whether the 1994 Violence Against Women Act is actually a constitutional exercise of federal authority...
...No wonder the defenses of VAWA have been so subdued...
...ments next spring...
...Michael Greve has noticed that feminists now defend VAWA in terms entirely different from the ones they used only afew years ago...
...Advocates for VAWA in Congress insisted that state courts were too infected with sexual stereotypes to give victims of sexual violence a fair hearing...
...If Congress has the authority to enact VAWA, it really can enact almost anything—or elevate anything to a "national problem"—whenever politicians find it convenient to do so...
...So why aren't they demanding new state laws and new state training programs for judges and prosecutors in their own states...
...And their decisions on somewhat related issues last year suggest they are all still of a mind to enforce constitutional limits on Congress in the interest of federalism...
...Whatever else it is, "a crime of violence motivated by gender" (in VAWA's weird phrasing) isn't "commerce;' let alone interstate commerce...
...Sure, 33 state attorneys general have submitted a brief urging the Supreme Court to overturn the lower court rulings in Brzonkala...
...She did not know these students and it was already two a.m...
...Accordingly, the accused students were suspended from school for a year but not expelled...
...The Federal Register of October 5 printed Clinton's proclamation, which earnestly denounced the "tragedy" that "touches all our lives by weakening families, leaving emotional scars," etc...
...Feminism has moved from the cutting edge to the rear guard...
...The Court protested that Congress had no reason to think that states and localities were infringing actual First Amendment rights (as interpreted by the courts) and therefore had no authority to impose new regulatory requirements just by invoking the vague phrase "religious liberty...
...The undisputed facts are that Christy Brzonkala, a student at Virginia Tech, on her way home from another party, took herself up to the dorm room of two male students...
...But history has moved on...
...The five justices who voted with the majority in Lopez and Boerne are all still on the Court...
...In explaining the need for a federal claim, Brzonkala's attorney informed the U.S...
...Perhaps that's because the White House did not exactly trumpet President Clinton's official "proclamation" of this "Awareness Month" on September 30...
...But if there remains some possibility that O'Connor might ignore recent precedent to uphold VAWA, that makes it all the more striking how little agitation there has been to save this statute...
...The American Spectator • December 1999/January 2000 61...
...Then there was sex...
...It's not a serious argument...
...When enacted five years ago, it was heralded as an urgently needed response to a terribly pressing problem...
...It has long been accepted, even by the Court's conservatives, that Congress has broad powers to attach conditions on the receipt of public funding...
...and then proceeded to announce a slew of law enforcement initiatives through which "my administration" is working to end this problem...
...Having claimed that sexual violence is a big problem and then offered only VAWA in response, they'd sound like the rapist who said, "You'd better put some ice on that...
...The same Congress also enacted the "Gun-Free School Zone Act" making it a federal crime to carry a gun within a thousand yards of a public school...
...Brzonkala then went after the two accused students under the Violence Against Women Act, which allows victims of violence to seek damages from the assailants if the latter were motivated by "gender bias...
...Greve is the executive director of the Center for Individual Rights, the Washington-based law firm that has been litigating this case from the outset on behalf of the accused football players...
...Justice Sandra Day O'Connor, it is true, did desert her fellow conservatives last year in a case broadening access to federal harassment claims against public schools...
...The lower courts in Brzonkala found that these recent precedents demanded a comparable verdict on VAWA...
...But the Supreme Court is now poised to register its own disdain for this administration's empty and pathetic "awareness" gestures...
...The charge then was that curbs on racial and ethnic preferences in state hiring and university admissions would also limit affirmative action for women...
...Two years later, in City of Boerne v. Flores, the Supreme Court found the Religious Freedom Restoration Act an unconstitutional exercise of congressional power...
...Brzonkala arrived with a female friend but she stayed behind when her friend left and also stayed behind when one of the male students did...
...Brzonkala made no complaint or protest for six months...
...The suit also demanded an injunction directing Virginia Tech to provide "at least five hours of mandatory sexual assault awareness education to student athletes"—as if the school were winning football games by training its athletes to act like rapists...
...The argument most often presented by feminist advocates, he says, is that a ruling against VAWA would threaten federal civil rights protections for racial minorities, the handicapped, and other groups...
...Of course, the premise of the statute was always preposterous...
...But in 1994, Congress was eager to The Supreme Court is likely to side with the federalists...
...The Court emphasized that this power is limited to economic activities (as the term "commerce" implies) and activities that cross state lines or substantially affect other activities that cross state lines (as "among the states" implies...
...School authorities, after a quick "hearing" (with the usual abbreviated "process" of that era), found the students guilty of "sexual misconduct" but not rape...
...district court in Virginia of the plaintiff's "hopes for a wide national debate about why the 'no means yes' myth still persists...
...But they haven't made much noise about it...
...A local grand jury did consider the same evidence and did not find sufficient basis for any sort of criminal indictment...
...Meanwhile, it's just the opposite of what feminists argued three years ago in opposing the California Civil Rights Initiative...
...Brzonkala's suit demanded $8.3 million in damages from Virginia Tech, the exact amount the school had reportedly earned in the previous year's Sugar Bowl game...
...Nor can the law be defended as a "civil rights" measure when it is entirely disconnected from any denial of rights by state governments...
...Then she told school authorities she had actually been raped and that her rapist's roommate returned to the room to commit another rape on her...
...Most federal civil rights measures focus on commercial activities, such as the hiring, firing, or promotion of paid employees...
...With luck, the Supreme Court will help move us beyond some wider hypocrisies of the whole Clinton era...
...As it happens, VAWA was the major response to "domestic violence" highlighted in Clinton's proclamation...
...The case is a perfect embodiment of the spirit behind VAWA...
...States aren't denying "equal protection" when private citizens commit acts of violence — especially when those acts are already prohibited and punishable under state law.4 4 Rape is hard to prove not because judges and juries don't take it seriously but because they do take it seriously...
...Last year's ruling (in Davis v. Monroe County Board) concerned federal requirements imposed on institutions receiving federal grants...
...Rape is hard to prove not because judges and juries don't take it seriously but because they do take it seriously...
...The 4th Amendment, which gives Congress additional power to enforce its provisions, restricts the states from denying "equal protection of the laws...
...But two federal courts have already found it unconstitutional and the Supreme Court is very likely to affirm these judgJEREMY RABKIN is a professor of government at Cornell University...
...It was not, after all, as if rape and sexual assault were otherwise without remedy under state law...
...The gun law was neither and therefore encroached on responsibilities properly left to state and local governments under our federal system...
...As recently as the late 1970's, it was still a capital offense in a number of states...
...In recent months he has gone around the country to lecture on federalism and participate in forums and debates on topics related to Brzonkala...
...Brzonkala's attorney, an advocate for feminist causes, appealed to a new prejudice, more in favorwith feminists of the mid-1990's...
...By then it may seem an anti-climax...
...In essence, it is he said/she said, with some creepy feminist twists from that long-ago era when Hillary Rodham Clinton was championing Anita Hill and other purported victims of "sexual harassment...
...Now it seems to be generating about the same ground swell of support as Clinton's earlier initiative to send troops to Haiti...
...But in Brzonkala, she will find it harder to abandon the federalists for the feminists...
...And that pretty much seems to be what VAWA was designed to generate—feminist consciousness-raising by federal litigation...
...Congress claimed authority to enact this law under the Constitution's grant of congressional power to "regulate commerce among the states...
Vol. 32 • December 1999 • No. 12
