Commercial Dispute

"The federal government is acknowledged by all to be one of enumerated powers," wrote Chief Justice John Marshall in 1819. "The principle, that it can exercise only the powers granted to it…is now universally admitted."

Today, by contrast, the reigning assumption seems to be that Congress may do whatever it likes, so long as it does not violate an explicit constitutional prohibition. The Violence Against Women Act, which the U.S. Supreme Court was recently asked to uphold, illustrates that belief.

VAWA allows victims of violent crimes "motivated by gender" to sue their attackers in federal court. In 1995, a week after the law took effect, Christy Brzonkala used it to sue two Virginia Tech football players whom she accused of raping her when she was a student at the school.

The question before the Supreme Court as it decides that suit's fate is not whether violent criminals should be liable for civil damages; they already are, under the law of every state. The question is whether the Constitution authorizes Congress to create a federal remedy.

In arguing that it does, VAWA's supporters cite the Commerce Clause, which gives Congress the power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." If you don't see anything there about suing rapists, that's because you're looking too closely.

Congress stepped back and took a broader view when it approved VAWA. "Gender-motivated violence has a substantial adverse effect on interstate commerce," it asserted, "by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce."

That sounds pretty impressive, until you realize that the phrase "gender-motivated violence" could be replaced with "robbery," "car theft," "reckless driving," or just about any crime, hazard, or nuisance without making the claim less plausible. Is there anything the Commerce Clause doesn't cover?

The Supreme Court, beginning in 1937, invited such free-wheeling speculation by stretching the Commerce Clause beyond recognition to accommodate the New Deal and subsequent federal initiatives. In a 1942 decision that is still startling for its audacity, the Court said Congress could regulate local activities that have "a substantial economic effect on interstate commerce."

The case involved an Ohio farmer named Roscoe Filburn who violated the Agricultural Adjustment Act of 1938 by growing 12 more acres of wheat than he had been allotted. Even if Filburn did not sell any of the extra wheat, the Court said, it would still "suppl[y] a need of the man who grew it which would otherwise be reflected by purchases in the open market."

If growing food for your own consumption has a "substantial effect" on interstate commerce and is therefore subject to congressional regulation, it's hard to see what area of life is beyond federal authority. After that decision, not surprisingly, the Court found a Commerce Clause rationale everywhere it looked. It even approved federal regulation of hotels and restaurants, because the former attract out-of-state guests and the latter buy supplies from other states.

By 1995, however, the Court saw that its expansive reading of the Commerce Clause threatened to make state government superfluous and nullify the principle of enumerated powers, which the Framers saw as the main bulwark against federal tyranny. Overturning a federal ban on gun possession within 1,000 feet of a school, a majority led by Chief Justice William Rehnquist observed that the law "has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms."

Rehnquist rejected the government's argument that Congress was acting within its authority under the Commerce Clause because gun possession in school zones contributes to crime, which affects the national economy, and undermines education, thereby reducing productivity. "Under the theories that the Government presents," he said, "it is difficult to perceive any limitation on federal power."

Given the skepticism expressed by the justices during oral arguments in the VAWA case, it seems likely that they will overturn the statute's lawsuit provision on similar grounds. But they ought to go further, heeding Justice Clarence Thomas's call to rethink their approach to the Commerce Clause.

"If taken to its logical extreme," Thomas wrote in the gun law case, the "substantial effect" test "would give Congress a 'police power' over all aspects of American life….Such a formulation of federal power is no test at all. It is a blank check."