VIOLENCE AGAINST THE CONSTITUTION

...Whether or not the Supreme Court uses Brzonkala as a vehicle to further restrict congressional lawmaking under the commerce clause, the Violence Against Women Act is probably doomed...

...Supporters of the statute contend that Lopez is a judicial orphan, a fact-specific decision rather than a signal from the Supreme Court that its policy of congressional indulgence is over...

...Under the Constitution, however, Congress cannot simply make whatever laws it chooses...

...The Court complained that the government’s arguments about the effects of guns near schools on interstate commerce required “the piling of inference upon inference...

...Christy Brzonkala, a freshman at VPI in the fall of 1994, alleged that she was raped in her dormitory by two members of the college football team...

...Not only has the Supreme Court shown heightened sensitivity to issues of federalism in the past decade, but the American Bar Association recently urged a reevaluation of Congress’s tendency to transform state-level offenses into federal crimes...

...The law was a popTHE VIOLENCE AGAINST WOMEN ACT WAS A POPULAR RESPONSE TO A SERIOUS PROBLEM, WITH ONE DRAWBACK: IT’S NOT CONSTITUTIONAL...

...For the majority opinion in Brzonkala is not predicated on a political objection to the Violence Against Women Act—a judgment, say, that violence against women is a minor problem...

...Even the Washington Post has editorialized in favor of congressional restraint in this area...

...The legal basis for the Violence Against Women Act was thus cast into doubt...

...As the Washington Post has lamented, “The problem is that federalism is almost nobody’s paramount policy concern—including ours...

...This complaint should not be dismissed out of hand—it should be refuted...

...Every American of conscience opposes violence against women, so the invalidation of this particular statute satisfies no constituency...

...The true import of Lopez has yet to be determined: Since this decision in 1995, the Court has refused to elaborate on Lopez...

...With such rationalizations, the Supreme Court has allowed Congress to address moral and economic issues that seemed to demand national solutions, sweeping aside Congress’s lack of authority to do so...

...Social activists and liberal constitutional scholars deny this en masse...

...In a case called United States v. Lopez, the Court for the first time in over fifty years struck down an exercise of congressional power based on the commerce clause...

...Interestingly, though, the emerging judicial response to this threat has caused discomfort among some conservatives...

...Constitutional balance should, however, be the paramount concern of the courts...

...According to the Fourteenth Amendment, Congress may legislate to prevent states from infringing on equal protection...

...However, Brzonkala offers the Court a prime opportunity to clarify its intentions...

...but purely private action, like that in Brzonkala, is beyond Congress’s reach...

...Craig D. Turk, a Washington lawyer, is a former managing editor of the Public Interest...

...In the very first words of one of the two concurring opinions in Brzonkala, Chief Judge J. Harvie Wilkinson notes that “it is a grave judicial act to nullify a product of the democratic process...

...Then on March 5, the Fourth Circuit stepped even more boldly into the constitutional breach: It struck down a central provision of the Violence Against Women Act, on grounds that make Supreme Court review all but inevitable, implying as they do a significant curtailment of Congress’s legislative powers...

...Just a year after the bill was passed, the Supreme Court did a sharp aboutface in its commerce-clause jurisprudence...

...Certainly the time is right...

...ular response to a serious problem, and its application in a case like Brzonkala’s, where other means of redress had failed, has obvious appeal...

...Instead, what the Fourth Circuit was looking for in Brzonkala is a principle for keeping legislative power within constitutional bounds...

...The only other potential justification for the statute, Congress’s power to guarantee citizens equal protection of the laws, is powerfully refuted in the majority opinion...

...Traditionally liberal institutions, then, are acknowledging the danger to our constitutional balance inherent in the federalization of certain social policies...

...Relying on this well-established end run around the Constitution, the drafters of the Violence Against Women Act deliberately contrived an interstate-commerce justification for their bill and larded the legislative history with findings purportedly detailing the social “costs” of gender-motivated violence...

...Holding unconstitutional a federal law banning possession of handguns within 1,000 feet of a school, the Court declared that however desirable such a ban might be, Congress had no authority to enact it...

...The decision rejected the idea that evidence of such an attenuated impact on national productivity justified congressional regulation...

...support that the Violence Against Women Act enjoys— and the likelihood, acknowledged by the majority in Brzonkala, of a backlash if it is overturned—this law epitomizes a federalizing impulse in the American approach to social problems that is coming under increased scrutiny...

...Nevertheless, in the past half century, the Supreme Court has enabled Congress to act outside the explicit constitutional limitations by broadly interpreting the legislature’s power to regulate interstate commerce...

...Thus, the Supreme Court has upheld legislation regulating racially discriminatory seating in a rural Alabama restaurant and a farmer’s production of wheat for his own family’s use, arguing that those activities in the aggregate influence patterns of travel and commerce between states...

...The purpose of this law, according to the Congress that passed it shortly before the incident at VPI, is “to protect the civil rights of victims of gender-motivated violence and to promote public safety, health, and activities affecting interstate commerce...

...Their maneuver, however, was mistimed...

...Nor does the decision reflect a court’s search for a legal justification for striking down a law it doesn’t like...

...Brzonkala is, in this sense, a brave opinion...

...In theory, virtually any activity can be construed to have some effect on interstate commerce...

...Following VPI’s administrative acquittal of one of the accused and the deferred suspension of the other, Brzonkala sued both men, charging that she had been raped because of “gender animus” in violation of the Violence Against Women Act...

...The case has a high political profile, and Judge J. Michael Luttig’s 125-page majority opinion tees up for Supreme Court consideration virtually every legal argument relevant to commerce-clause interpretation...

...Though the ruling brought political criticism from the left and some jurisprudential misgivings on the right, the Fourth Circuit was absolutely correct...

...By striking down the Violence Against Women Act, the Fourth Circuit has exposed itself to the charge of replacing the results-oriented liberal judicial activism of years past with a new results-oriented conservative agenda, instead of with a policy of judicial restraint...

...its authority is limited to the areas enumerated in Article I. A broad grant to legislate on behalf of public health and safety is not among its enumerated powers, no matter how great the perceived need for such a power may be...

...It is to be hoped, then, that the Supreme Court will take up Brzonkala, affirm the Fourth Circuit, and use the occasion to articulate more clearly the outer boundaries of Congress’s commerce-clause authority...

...Despite the political supTHE FOURTH CIRCUIT WAS SEEKING TO CONFINE THE LEGISLATIVE POWER WITHIN CONSTITUTIONAL BOUNDS...

...On the other hand, the availability of its remedies pleases many constituencies, and it is tempting to sacrifice the abstract principles of federalism for so popular a policy...

...There is only one drawback: Congress had no authority to pass the civil-rights provision of the act...

...The law affords protection, in part, by permitting victims of gender-motivated violence to seek compensatory and punitive damages in federal court...

...The facts of the case—Brzonkala v. Virginia Polytechnic Institute—are admittedly grim...