December 1, 1999
With President Clinton issuing a blizzard of overreaching
executive orders and Congress federalizing hundreds of crimes that are
properly in the jurisdiction of the states, we must depend on the
Supreme Court to stand for the Constitutional principles of federalism.
The chief reason Americans have retained their liberties through two
centuries of governance by power-seeking politicians is the separation
of power between the states and the federal government, and then among
the three branches.
The case that puts this to the test is Brzonkala v. Morrison,
which is before the Court in the current session. It tests the
constitutionality of the Violence Against Women Act (VAWA) passed in
1994 under feminist pressure in the wake of the much-ballyhooed
Ordinarily the lack of actual and credible complaints, evidence or
convictions would preclude million-dollar lawsuits over private
conduct. But VAWA allows for attorneys' fees and punitive damages for
alleged violence that was never reported to the police, let alone
proven in criminal court.
VAWA's Section 13981 expressly states that "a prior criminal
complaint, prosecution, or conviction" is not required in order to
recover "compensatory and punitive damages." Plaintiffs can go into
federal court seeking millions of dollars by alleging violence without
ever alerting the police that a crime may have taken place.
Real violence should be reported to the police in order to enable
credible investigation and prevention of recurrence of the violence.
Federal law should not provide financial incentives to bypass police
Plaintiffs should not be allowed to sue in civil court on claims
embellished by allegations of violence without independent and timely
investigation by local law enforcement. VAWA's Section 13981 creates
such incentives for new federal lawsuits alleging crimes long after the
relevant state statute of limitations has expired.
In attempting to create a new federal cause of action for monetary
damages, VAWA relies on the Commerce Clause and Section 5 of the 14th
Amendment. If upheld, VAWA would be an extraordinary and unprecedented
extension of federal power into the areas of domestic violence and
The Commerce Clause gives Congress the power to regulate
interstate commerce in order to ensure the free flow of goods and
services. Domestic violence has absolutely nothing to do with commerce
or the flow of goods.
Section 5 of the 14th Amendment gives Congress the power to
protect citizens against state violations of their rights. However,
VAWA attempts to reach private conduct completely removed from any
The federal government should not be undermining state criminal
laws. No one is helped when violence against women is trivialized into
allowing law firms to strategize over how to make the most money from
an ugly situation.
The specific facts alleged in the Brzonkala case were, indeed,
ugly. But this case is about trying to recover a large judgment in
federal court by alleging a rape that was not promptly reported to the
When money, rather than criminal justice, is the name of the game,
the courts and the public are unable to sift fact from fiction. Under
VAWA's approach, real criminals will go free while the falsely accused
will be subjected to financial and reputational ruin.
Congress has no constitutional basis for regulating marriage or
domestic relations. It is neither constitutional nor prudent for
Congress to impose its one-size-fits-all view of domestic relations on
VAWA's attempt to federalize issues such as rape, spousal rape,
spousal immunity, and other aspects of domestic relations would open
the door for Congress to federalize marriage itself. If VAWA's Section
13981 is upheld, there would be no logical basis to prevent Congress
from regulating marriage, alimony, child custody and other aspects of
Just as Congress should not impose a uniform federal remedy for
murder, Congress should not impose a uniform federal remedy for
domestic violence. It is foolish to pretend, as VAWA implicitly does,
that a perpetrator of a violent rape will be deterred by the threat of
a future lawsuit to recover money.
Real violence is restrained by law enforcement, not by civil
lawsuits. VAWA is an unconstitutional infringement on state
jurisdiction over marriage and domestic relations. A "War on Domestic
Violence," like the "War on Drugs," does not justify suspension of the
Constitution in the process.