MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Federal Female Genital Mutilation Ban Exceeds Congress's Power, Holds District Court

Policing such behavior, the court concludes, is a matter for the states, because it isn't authorized as a regulation of commerce or as necessary and proper to comply with treaties.

The decision, handed down today, is U.S. v. Nagarwala (E.D. Mich.); note that the decision did not consider any argument that there should be a religious exemption under the federal Religious Freedom Restoration Act for purely symbolic nicking or even minor excision that (some some have argued) doesn't cause any real harm and is much less intrusive than male circumcision. The court's decision was simply that Congress lacked the enumerated power to regulate this behavior at all, and that dealing with such behavior should be left to the states (as with other noncommercial intrastate misbehavior, for instance the violence against women discussed in U.S. v. Morrison, the case holding that parts of the Violence Against Women Act exceeded Congressional power).

Note also that similar arguments have been made against federal bans on certain kinds of abortion procedures, including by our own David Kopel and Prof. Glenn Reynolds (InstaPundit), in their Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban Act, 30 Conn. L. Rev. 59 (1997).

Here's the Conclusion of today's court decision:

Having reviewed § 116(a) with the greatest possible deference, the Court concludes that it is unconstitutional. Congress had no authority to pass this statute under either the Necessary and Proper Clause or the Commerce Clause.

The Necessary and Proper Clause does permit Congress to pass legislation to enforce treaty obligations, but there must be a rational relationship between the two. In the present case, there is no such relationship between the ICCPR and the FGM statute. Article 3 calls for "the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant," while Article 24 calls for protection of children without discrimination based on "race, colour, sex, language, religion, national or social origin, property or birth." Neither article is rationally related to the FGM statute, which prohibits the mutilation of girls' genitalia.

Even if it could be argued that the statute rationally seeks to implement a provision of the ICCPR, Congress may not enact such a statute because, as the Supreme Court has stated, the federal government has no "plenary police power," Lopez, 514 U.S. at 566, and "the clearest example of traditional state authority is the punishment of local criminal activity." Bond, 572 U.S. at 858. Federalism concerns demand that this division of authority between the federal and state governments be respected. No treaty—and no statute enacted to implement a treaty—may upset this balance.

Nor was enactment of the FGM statute a permissible exercise of congressional power under the Commerce Clause. That clause permits Congress to regulate activity that is commercial or economic in nature and that substantially affects interstate commerce either directly or as part of an interstate market that has such an effect. The government has not shown that either prong is met.

There is nothing commercial or economic about FGM. As despicable as this practice may be, it is essentially a criminal assault, just like the rape at issue in Morrison. Nor has the government shown that FGM itself has any effect on interstate commerce or that a market exists for FGM beyond the mothers of the nine victims alleged in the third superseding indictment. There is, in short, no rational basis to conclude that FGM has any effect, to say nothing of a substantial effect, on interstate commerce. The present case cannot be distinguished from Lopez or Morrison. As in those cases, FGM is a crime that could be prosecuted under state law. FGM is not part of a larger market and it has no demonstrated effect on interstate commerce. The Commerce Clause does not permit Congress to regulate a crime of this nature.

As the Supreme Court has stated, "[a] criminal act committed wholly within a State 'cannot be made an offence against the United States, unless it have some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States.'" Bond, 572 U.S. at 854. For the reasons stated above, the Court concludes that Congress had no authority to enact 18 U.S.C. § 116(a) under either grant of power on which the government relies. Therefore, that statute is unconstitutional.

And here's part of the more detailed discussion of the Commerce Clause:

In deciding whether Congress has used its legislative power permissibly under the Commerce Clause, the cases instruct to first evaluate the economic nature of the regulated activity. In the present case, the government has failed to show that FGM is a commercial activity. It claims that "[l]ike child pornography and marijuana, an interstate market exists for FGM." Yet the government's only evidence of such a market is the fact that it has alleged nine FGM victims in the present case, five of whom were brought to Michigan from neighboring states. This is not a market, but a small number of alleged victims. If there is an interstate market for FGM, why is this the first time the government has ever brought charges under this 1996 statute? The government's attempt to show that there is an interstate market for FGM falls flat; its comparison to the multi-billion-dollar interstate markets for marijuana and pornography is unsupported and unconvincing.

The government also contends that FGM is "an illegal form of healthcare," and since Congress can regulate healthcare, it can regulate FGM. In an effort to show that FGM is a form of healthcare, the government points to the fact that two of the defendants are physicians, that the procedure was performed at a medical clinic, and that Dr. Nagarwala "used commercially-sold medical tools and supplies," including Valium, a "schedule VI controlled substance, federally regulated as a commercial product." Id. at 38. The comparison of FGM to healthcare is unsuitable. FGM is a form of physical assault, not anything approaching a healthcare service. The cases the government cites in this section of its brief dealt with abortion services and healthcare generally, id. at 37, which bear no resemblance to the crime of mutilating girls' genitalia.

The government further asserts that "like the legislation at issue in Raich, Congress has enacted a comprehensive regulatory regime to eradicate FGM." The regulatory regime at issue in Raich is the Comprehensive Drug Abuse Prevention and Control Act and implementing regulations. This statute covers drug treatment (Title I), drug control and enforcement (Title II), and drug importation (Title III). Title II, which classifies a long list of drugs in one of five schedules, sets "strict requirements regarding registration, labeling and packaging, production quotas, drug security, and recordkeeping." There is no comparable "regulatory regime" for FGM, but simply a ban on the practice. In Raich, the Supreme Court noted that "[e]conomics refers to the production, distribution, and consumption of commodities," and found that the CSA "regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market." No such comparison can be made with FGM.

FGM cannot, by any stretch of the imagination, be classified as an economic or commercial activity. There is no suggestion that the procedure is done for money, aside from the unsupported comment made years ago by Senator Wellstone. Nor is there any suggestion that this "service" is offered within anything approaching an established interstate market, as exists for illegal drugs and pornography. Committing FGM is comparable to possessing a gun at school, i.e., a criminal act that "has nothing to do with commerce or any sort of economic enterprise." Lopez, 514 U.S. at 561. Nor can the Court distinguish FGM from gender-motivated crimes of violence, which the Supreme Court noted in Morrison "are not, in any sense of the phrase, economic activity." 529 U.S. at 613. Even assuming that FGM is a wide-spread practice within the United States (a fact the government has not established), it cannot be as wide-spread as violence against women. If, as the Supreme Court found in Morrison, rape and other forms of sexual assault against women are not economic or commercial activity, and therefore not part of an interstate market, no different conclusion can be reached concerning FGM, which is another form of gender- related violence.

The second factor the Court must consider is whether the statute contains "a jurisdictional element limiting the reach of the law to a discrete set of activities that has an explicit connection with, or effect on, interstate commerce." Norton, 298 F.3d at 555-56. There is no jurisdictional element in the FGM statute, which does not require any proof that the victims or the provider traveled in, or had any effect on, interstate commerce.

The cases indicate that the absence of a jurisdictional element is unimportant if there are sufficient congressional findings (third factor) or other evidence (fourth factor) of a substantial effect on interstate commerce. In the present case, however, there are no congressional findings other than the pro forma ones that accompanied passage of the statute. However, these are not findings as much as unsupported conclusions, and they do not begin to compare with the extensive findings made, for example, by both houses of Congress in Norton, Raich, and Perez. Nor are these the type of detailed, record-based findings that "would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye." Lopez, 514 U.S. at 563.

The Court next comes to the fourth factor, "the link between the regulated activity and interstate commerce," Norton, 298 F.3d at 556, i.e., whether there is a rational basis for finding that FGM has a substantial effect on interstate commerce. Here the government's argument amounts to this: there is a market for FGM, and even if defendants' activities have only a slight effect on that market, Congress can regulate it just as in Wickard, Raich, and Chambers. That is, the government seems to concede that it cannot show that defendants, by performing FGM and/or aiding and abetting and/or conspiring to do so, had a substantial effect on interstate commerce. But, the argument continues, because Congress can regulate the "market" for this service, it can also regulate defendants' activities in that market, regardless of how trivial their impact individually may be on the market as a whole.

For the reasons stated above, the Court rejects this argument. There is no evidence that FGM is a commercial activity, and there is no evidence that anyone beyond the mothers of the nine girls alleged in the third superseding indictment is in the market for this "service."

Finally, the government asserts that only a federal statute can deal with FGM because, as Congress asserted in its fourth finding, "the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control." This argument fails for at least two reasons.

First, the Commerce Clause allows Congress to regulate commercial activity that has a substantial effect on interstate commerce, not activity that is "beyond the ability of any single State or local jurisdiction to control." Second, the government informs the Court that twenty-seven states have passed FGM statutes, and nothing prevents the others from doing so. Further, counsel for the government argued during the December 5, 2017, hearing on defendants' motion to dismiss one of the counts of the second superseding indictment that FGM is criminal sexual conduct because it involves unlawful touching and penetration. If that is correct, then FGM could already be prosecuted in every state under existing criminal sexual conduct statutes, to say nothing of battery or child abuse statutes. The government's suggestion that "those seeking the procedure [can] travel to refuge states where the practice is not prohibited" is simply false. No state offers refuge to those who harm children.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Jeff_Kleppe||

    I think the word "power" in the subhead should be "proper"

  • Eugene Volokh||

    Fixed, thanks!

  • JesseAz||

    It will be fun watching the "you're a bigot if you disdain female genital mutilation" (splc vs hirsi Ali) crowd vs the "female mutilation is anyone women" feminist crowd in blue states.

  • JesseAz||

    Is anti women*

  • Rev. Arthur L. Kirkland||

    I do not see much fun associated with the crime of mutilation of a minor, but maybe my sense of humor or entertainment differs from others'.

    I see no justification or excuse for such crime, either, whether the minor victim is female or male.

  • MatthewSlyfield||

    The fun JesseAZ is referring to has nothing to do with actual genital mutilation of actual children, but everything to do with the inevitable showdown between the SPLC and company who have declared criticism of FGM to be a hate crime against Muslims and portions of the feminist movement who consider FGM to be a hate crime against women.

  • Krayt||

    ===the inevitable showdown between the SPLC and company who have declared criticism of FGM to be a hate crime against Muslims and portions of the feminist movement who consider FGM to be a hate crime against women.===

    I fear the latter is destined to lose, too, ust as general old-school feminist criticism of muslim nations and attitutes regarding burkas and whatnot has fallen.

    The US escaped a government-enforced orthodoxy of right think, only to see a social ostracism form evolve. Or re-evolve.

  • Michael Palin's Buttplug||

    The person to whom you're replying is a bona fide retardate.

  • JesseAz||

    Reading comprehension is not your strong suit Arthur. Hint... focus on the SPLC vs Hirsi Ali. Educate yourself.

  • Rev. Arthur L. Kirkland||

    If there would be such a debate -- I would be mildly surprised if the SPLC, rather than a right-wing caricature of that group, supports female genital mutilation -- there also would be a right-wing version of such a dispute, pitting misogynists and religious liberty fans against those who hate Muslims and Africans, but I doubt I would find that debate much fun, either.

  • JesseAz||

    Youre an uneducated lout, you're surprised by a lot of things. Like a goldfish is surprised a lot.

  • TwelveInchPianist||

    Soon, technology will be advanced enough to perform FGM in-utero, when the fetus is still part of the woman's body. Then not even states could ban it.

  • MatthewSlyfield||

    For a very loose definition of "soon" maybe. That kind of inutero physical surgery on a fetus is exceedingly likely anytime in the foreseeable future.

  • Brett Bellmore||

    I'd say it would actually be possible right now, IF there was any kind of legitimate medical need. Certainly not any harder than heart surgery in utero.

    Rather, it's just that the sets of people who'd want to do it, and people who are capable of doing it, don't intersect.

  • Eddy||

    Is there any history of states refusing to failing to properly prosecute these cases? Are they ignoring such crimes like Jim Crow Mississippi with civil-rights murders?

    Or are the feds simply trying to horn in on the prosecutorial action?

  • Careless||

    There's a history of states refusing to ban it

  • Eddy||

    But wouldn't this already be covered under state child-abuse laws?

  • JesseAz||

    That´s what the muslim´s are arguing against, that it is not child-abuse.

    Even twitter has allowed pro FGM ads on its service.

    Detroit is a big part of where these cases are occurring. Also Minnesota politicians retreated from a ban on FGM.

  • Brett Bellmore||

    Detroit, or Dearborn?

  • FlameCCT||

    Dearborn is a part of the Detroit metroplex.

  • Seamus||

    You'd think so, given that states think that letting your child walk to elementary school constitutes neglect and abuse, but that's actually completely different because reasons.

  • ReaderY||

    I would hope that the rule of lenity would cover this. In order to ban a controversial practice, you have to do so explicitly.

    For example, if the Supreme Court reverses Roe v.Wade, I would hope courts would resist efforts to prosecute people who have abortions for child abuse.

    Similarly, in those states that allow clit or for that matter ear piercing with parental permission, child abuse laws should not be applied to parents who give permission. After all, easily peircing can just as easily be described as horribly abusive female body mutilatikn as genital piercing.

  • MatthewSlyfield||

    As the court notes, FGM likely falls under both existing child abuse and existing child sexual assault laws.

    The lack of a separate explicit ban is more likely due to a lack of evidence that it's an issue in the given state. A plausible condition considering the federal ban has been on the books for 20 years and this is the first prosecution under the federal ban.

  • JesseAz||

    Let's not pretend states have ventured to ban FGM at a state level only to be rebuked as bigots by SPLC and other pro-muslim groups. Minnesota, linked above, is an example. What good as protection is a federal law never prosecuted and the first time it is, is overturned?

  • Krayt||

    ===Is there any history of states refusing to failing to properly prosecute these cases?

    Or are the feds simply trying to horn in on the prosecutorial action?===

    There is a history of the feds trying to horn in on the prosecutorial action, too, which is why it is denied them.

  • LiborCon||

    Congress, nor the states, thanks to McDonald v. Chicago, have the power to infringe on the Right to Keep and Bear Arms yet infringe they do.

    "I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government."

    — Federalist 84

  • Krayt||

    I remember my US govt. history teacher teaching exactly that -- one side feared encroachment on those liberties if they were not listed, and the other that any remaining unlisted ones would be presumed to not exist, or at least not a roadblock to legislation.

    Both sides assumed the rights all existed and need not be enumerated because the government had no powers except what was granted.

    As it turned out, the fears of both sides were realized.

  • Harvey Mosley||

    IANAL but wouldn't this reasoning apply to the Hughes Amendment with respect to completely intrastate transactions?

  • MatthewSlyfield||

    Yes, but that doesn't meant that the same outcome would result. There was very much an interstate (and international) market in automatic weapons and that market was well documented.

    The Hughes Amendment may well be vulnerable to a strict application of recent Supreme Court precedent on 2A, but no, it's highly unlikely that a commerce clause based attack on the Hughes Amendment in particular or the FFA in general would be successful.

  • Toranth||

    It'll be amusing to see what happens to this judge that just threw out Wickard v Filburn, since if people cross state lines doesn't count as commerce...

    I give it a week.

  • MatthewSlyfield||

    In this case (FGM), people crossing state lines (or not) had exactly nothing to do with why the court concluded that FGM does not count as commerce.

  • Toranth||

    The Court specifically mentioned that people crossing state lines to pay to have the operation performed does not qualify as interstate commerce.

  • MatthewSlyfield||

    Crossing state lines to have the operation is not interstate commerce, because having the operation without crossing state lines is not commerce. Crossing state lines does not turn non-commerce activity into interstate commerce.

  • Toranth||

    Wickard v Filburn established that non-economic activity could be economic if someone might have been willing to pay money for it. There didn't need to actually BE a payment, or even a transaction - just the possibility of one was enough.

    Heart of Atlanta said that the mere act of travelling across state lines was interstate commerce. The Amish beard cutting case a few years back was under the Commerce Clause - because the tools used crossed state lines, and because the people traveled on roads that handle interstate traffic, even if they didn't cross state lines.

    There seems to be plenty of precedent for this case to have gone the other way. It's nice to see a judge roll back a little bit of the absurdity that is the modern Commerce Clause... but it does not seem to follow from existing cases.

  • Milhouse||

    It was not in evidence that they were paying for it.

  • PoxOnBothYourHouses||

    So the docs did it for free? I understand that it wasn't covered by medical insurance, but this strains credulity.

  • Toranth||

    I agree with you, Pox.

    The 'customers' expended money in the travel, the doc expended money in the use of his tools, time, and expertise.

    Even if there was no actual transfer of cash, the mere fact that the customers were willing to expend money, time, and effort to travel to receive this service indicates that it was a thing of value to them.

  • TwelveInchPianist||

    Interestingly, the Judge is the one who overturned Michigan's gay marriage law, declined to stay his ruling pending appeal, and subsequently officiated the plaintiffs' wedding.

  • JesseAz||

    Sounds like the judge is a paying member of groups like SPLC. Or even the ACLU, which is against criminalization of FGM.

  • Eddy||

    Their statement seems all over the place:

    "We believe results-based solutions that prioritize education and prevention over criminalization are the most effective way to curb dangerous behaviors.

    "The original version of LD 745, which would create multiple new felony penalties for FGM, is redundant; there are already severe penalties under both Maine and federal law that cover FGM. This bill is nothing more than an attempt to single out behavior that is commonly attributed to certain religious and ethnic communities as different from other forms of abuse. We're also concerned that the bill was crafted without the input of policy experts or affected communities. After hearing from women in Maine who were directly affected by female genital mutilation as well as advocates against domestic violence, we opposed the original version of LD 745.

    "We do not support the practice of FGM, and we are not calling for the legalization of this practice. We do not oppose exisiting laws outlawing FGM. For nearly a decade, the ACLU has supported laws aimed at protecting the rights and safety of women and girls. This includes laws condemning the practice of FGM. We remain committed to working with our partners who advocate for the rights of women and girls, and those in Maine's immigrant communities, to find evidence-based solutions that will truly protect these vulnerable populations."

  • PoxOnBothYourHouses||

    Basically they're saying there are already both state and Federal laws against FGM. I hate what the ACLU has become as much as anyone, but I interpret their statements here differently.

  • MDJD in NY||

    The judge is a Reagan appointee with a reputation as a conservative.

  • ||

    No real surprise. To liberals, inserting one's HIV infected schlong into another man's tuchis is freedom's holy grail.

  • Krayt||

    If your real concern was the prevention of disease spreading, you might have a point. But if it is you are scared a guy in the sky is getting furious at humanity on the principle of the thing, not so much.

  • M.L.||

    What a jackass. He should be impeached.

  • Remember to keep it all polit||

    What if they use a knife bought in another state? Or the imam (or whatever they call the mutilator) crosses state boundaries? Or if anyone breathes air which has crossed state boundaries?

  • Careless||

    Note that two of the girls were brought in from other states to have this done to them.

  • RoyMo||

    This is the most important fact if the argument is that the Feds do not have jurisdiction. My experience with every other Federal Crime is that if someone travels from one state for the explicit purpose of committing a Federal crime the Federal Nexus prong is not an issue.

    But what do I know?

  • Milhouse||

    The key words there are "for the explicit purpose of committing a Federal crime". So first there must be a federal crime, and then Congress can make it a crime to cross state boundaries to commit it. You can't use the very act we're discussing as the crime that justifies itself. That's reasoning in a circle.

  • Seamus||

    And if the federal statute had made it illegal to transport girls across state lines for the purpose of mutilating their genitals, then I presume the court would have upheld it. But that's not what the law said.

  • Noscitur a sociis||

    Such a statute would probably be constitutional under current Supreme Court precedent. But the statute that Congress enacted does not even purport to contain any express requirement that interstate commerce be affected or that an instrumentality of interstate commerce be involved. There is a separate subsection that criminalizes transporting someone outside of the country to undergo genital mutilation, and this decision doesn't appear to cast any doubt on the continued validity of that.

  • Rev. Arthur L. Kirkland||

    I support neither female genital mutilation nor male genital mutilation with respect to minors.

    I blame my libertarianism and decency for those positions.

  • Paladin_44||

    Good positions to come from, Art.

  • Seamus||

    I take it this means you oppose letting parents let their minor children undergo gender reassignment surgery.

  • Jiro Cepica||

    So the Feds can ban incandescent lightbulbs, but not FGM?

    So the City of Chicago can take my guns away, even though the Constitution says it can't.

    We're in the end stages of the late Roman Empire.

  • RoyMo||

    No we are in the end stages of the middle Republic. We haven't even gotten to Marius and Sulla's proscriptions.

  • Pi Guy||

    What the court is saying is that it's up to the state of MI - which has a significant Muslim population - to decide of FGM is a crime. I mean for Zeus's sake, they elected Keith Ellison as AG. They've already said, emphatically, "no, its not a crime."

    So it behooves the rest of us to point and laugh until either:

    (1) it's so uncool to be a Muslim - that is, continue to condone this act - that no one wants to be one as a result of the sheer embarassment that it would bring;

    or (2) in order to continue having a following, Islam decides it's a really disgusting and immoral thing to do and stops encouraging the act (see Catholic Church circa Modernity: "Meh - Divorced? Gay? Wealthy? Whatever. Your cash goes in that brown plate right there. Thank you and God bless!").

    Tautology Alert: There are limits to limited government, Article 4 and elsewhere. And don't be afraid to use shame to encourage behavior modification. It appears to be working for with respect to racism, sexism, and homophobia.

    Now do pot and grains from Iowa.

  • RoyMo||

    It was Minnesota, not Michigan, that elected Keith Ellison, they have also outlawed FGM.

  • Eddy||

    They're both flat states beginning with "M." And they look the same when you're flying over them on your way from Los Angeles to New York, especially if you've been liberally sampling the contents of the drink cart.

  • Rev. Arthur L. Kirkland||

    I will never understand ostensible adults who wish to mutilate children, male or female.

    Some people are no damned good. Others are just ignorant and gullible. Either way, cutting a child's genitals is not the work of any decent person.

  • Seamus||

    So Orthodox Jews are not decent people. Got it. (Nor, for that matter, were my parents.)

  • Toranth||

    Antisemite bigots like RAK never realize how much they reveal.

  • Josh R||

    I am surprised Congress didn't add the interstate-commerce jurisdictional predicate like they did to fix the law invalidated in Lopez.

  • Brett Bellmore||

    It's yet to be established that they actually "fixed" that law; They've been very careful since not to generate any test cases.

  • Milhouse||

    Wikipedia lists seven cases, from the 1st, 3rd, 6th, 8th, 9th, and 10th circuits, that upheld the "fix". I don't understand why. I don't understand how the fact that something once upon a time travelled across a state line makes its current use affect interstate commerce. How's that different from Congress purporting to regulate philately on the grounds that used stamps have travelled in interstate and/or international commerce?

  • Smartacus||

    Why doesn't Congress have the authority under the Equal Protection clause of the 14th Amendment?

  • Careless||

    What does equal protection have to do with it?

  • Josh R||

    In City of Boerne, the Court held "that [it is not the case] Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States." Since the Fourteenth Amendment does not require the states to ban FGM, Congress can't ban it under it's Fourteenth Amendment enforcement power.

  • WhatYouMightNotKnow||

    Since I did not see a list, I looked it up. In these 24 states FGM is not a crime:

    Alabama
    Alaska
    Arkansas
    Connecticut
    Hawaii
    Idaho
    Indiana
    Iowa
    Kentucky
    Maine
    Massachusetts
    Mississippi
    Montana
    Nebraska
    New Hampshire
    New Mexico
    North Carolina
    Ohio
    Pennsylvania
    South Carolina
    Utah
    Vermont
    Washington
    Wyoming

  • RoyMo||

    I assume nobody in Boise has thought of it yet.

  • Milhouse||

    On the contrary, a bill was proposed and defeated.

  • Eddy||

    I'd like to see the source for that list.

  • Alpheus W Drinkwater||

    An anonymous person posted it on the internet. That's good enough for most people, what makes you special?

  • PoxOnBothYourHouses||

    Whoa! Step back a moment.

    Maine?

    That's where the ACLU /said/ there was /already/ a law or two outlawing FGM, such that the state should not try to pass a new law against the practice. Instead, "results-based solutions that prioritize education and prevention over criminalization are the most effective way to curb dangerous behaviors." And the state stepped back.

    What ultimately happened in Michigan?

    Anyway, I like the ACLU's cant about education and prevention instead of criminalization, to stop dangerous practices. I think we should work with this for homicide.

  • PoxOnBothYourHouses||

    Ah -- I see Michigan ultimately passed anti-FGM laws.

  • ||

    If this doesn't make real Americans realize that Islam needs to be prohibited by Constitutional amendment, I don't know would.

  • Rev. Arthur L. Kirkland||

    What about a religion that advocates male genital mutilation?

  • Eddy||

    Stale-thinking anti-Semitism will get left behind in the new, glorious liberal-libertarian era!

  • Rev. Arthur L. Kirkland||

    In right-wing world, some childrens' mutilated genitals are better than other children's mutilated genitals . . . . because ostensible adults believe some childish fairy tales can beat up other childish fairy tales?

    And you guys still wonder how and why you lost and will continue to lose the culture war?

  • ||

    It's easy to win a cultural war when you bring in outsiders to tilt the scales.

  • Eddy||

    Yes, Democrats are winning because they're anti-Semitic, it's true.

  • RoyMo||

    Well if two of the parties travelled from Minnesota, I guess the government didn't even address the interstate commerce aspect at all, either that or the opinion just ignored all of it. I would be curious if he was nearly as diligent about proving a Federal Nexus in every other prosecution that has come before him.

  • Noscitur a sociis||

    As I said above, the text of the statute does not contain any reference to interstate commerce.

  • Rock Lobster||

    This is what the feds want:

    https://tinyurl.com/Poosy-Cuntrol

  • Jimbino||

    A non-Jewish analysis, to be fair, would refer to circumcision as MGM or "male genital mutilation"

  • Eddy||

    Totally not funny. At all.

  • Eddy||

    In fact, I'll ask you to cut it out.

  • MatthewSlyfield||

    Nonsense. There are multiple levels of FGM practiced in different areas.

    Only the lowest level, removal of just the clitoral hood, is remotely equivalent to male circumcision. It is also the rarest form of FGM, because it's not practiced anywhere by Muslims or others for purposes of controlling women. While most other forms of FGM reduce or eliminate female sexual pleasure/function, this form, that is equivalent to male circumcision tends towards the opposite effect.

  • Bob from Ohio||

    "non-Jewish analysis"

    Is that what Jew hating is called these days.

    Circumcision is a foundation of the religion, a ban is the same as banning the religion for males.

    FGM is not religious in nature at all. Its just a African tribal custom used to control women. A minority practice within Islam.

  • Seamus||

    Claiming that circumcision "is the foundation of the religion" is not sufficient to justify it. I'm sure Moloch worshippers would argue that the sacrifice of babies was the foundation of their religion, and even if that were true, and even if banning child sacrifice were the same as banning the religion, it would still be a good idea to ban it.

    If you want to defend male circumcision, you have to defend it on its own merits (or perhaps, in a negative way, by showing that banning circumcision doesn't further any compelling governmental interest, or that banning isn't the least restrictive way of furthering that interest).

  • Bob from Ohio||

    Nice comparison of Jews to child murderers.

  • Seamus||

    Nice way to miss the point.

  • Ike B.||

    I mean, casually skirting the blood libel line is a neato way to lose your audience, so I don't know that this is on Bob.

  • Seamus||

    I'm probably wasting my time, but let me try to explain to you what *is* the point, using small words in hopes that you'll understand.

    We all agree that child murder is *not* morally equivalent to circumcision. But the task for the defenders of circumcision is to explain why it's *so* different that it doesn't deserve legal prohibition (or maybe not even moral disapproval). The argument that "it's essential to my religion" isn't a valid distinction, because it proves too much, as it's one that can be made just as easily (and just as accurately) by the Moloch worshipper.

  • Bob from Ohio||

    Points are not made better by patronizing, Bye.

  • Seamus||

    Nor are they made by deliberately misunderstanding a reductio ad absurdum argument in order to make false and gratuitous accusations of antisemitism.

  • PoxOnBothYourHouses||

    You're right, Seamus. Religion by itself isn't sufficient.

    But when added to the following, there's a pretty good case for allowing it, particularly in comparison to FGM: (1) little pain/suffering; (2) little difference in sexual pleasure and function among those cut and uncut; (3) some evidence of medical benefits of circumcision. This last is disputed, but the American Academy of Pediatrics recommends that it be offered to parents of newborn boys [frankly they have gone back and forth on this over the years]

    It's probably why circumcision is so widespread in the U.S. It ain't just Jews. Two different sources I found put the overall incidence in the mid-50% range and about 80%. You'd think they be able to agree better.

    The 56% report

    The 81% and AAP recommendation news report

  • Ike B.||

    But the point isn't to defend male circumcision. The point is to defeat the comparison of male circumcision to female genital mutilation. Among the many distinctions between the two practices is the fact that male circumcision is a central tenet of Judaism, while female genital mutilation has, in fact, little religious significance. It's a practice that was prevalent in certain cultures that eventually became Muslim.

    Which is a roundabout way of saying, "Why exactly are we talking about male circumcision?"

  • VinniUSMC||

    If only the courts would do a better job of figuring out when Congress lacks the enumerated power to regulate things.

  • Johnniest Doe||

    This rather perfectly demonstrates the idiocy of Living Constitution theory, in which there really isn't any constitution at all. Just do whatever feels good...until somebody decides what was done was icky.

  • Milhouse||

    Indeed, those protesting this decision reveal themselves to be "living constitutionalists".

  • Bob from Ohio||

    Strange issue for a judge to finally assert a limit to the usually limitless federal power.

    Killing a baby in the womb is a medical procedure subject to federal but this is not. I guess some animals are just more important than others.

  • Seamus||

    Do you have any reason to believe that this judge would uphold federal laws purporting to ban abortion? As you may have noticed, Prof. Volokh's post pointed out that the arguments for the unconstitutionality of the federal law against FGM could also be brought "against federal bans on certain kinds of abortion procedures, including by our own David Kopel and Prof. Glenn Reynolds (InstaPundit), in their Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban Act, 30 Conn. L. Rev. 59 (1997)."

  • Brett Bellmore||

    I can't argue with the reasoning, the federal government DOES lack the general police power. Though I think there's at least a color-able argument that this falls under treaty implementation, or perhaps the law of nations, I wouldn't go there myself.

    But I think there's a snowball's chance in hell this line of reasoning will be extended beyond this application. Realistically it's just a special accommodation for a particular strain of Islam.

  • Bob from Ohio||

    "Realistically it's just a special accommodation for a particular strain of Islam."

    Painfully obvious.

  • MatthewSlyfield||

    "Though I think there's at least a color-able argument that this falls under treaty implementation,

    The court in the present case explicitly considered and rejected that argument.


    Even if it could be argued that the statute rationally seeks to implement a provision of the ICCPR, Congress may not enact such a statute because, as the Supreme Court has stated, the federal government has no "plenary police power," Lopez, 514 U.S. at 566, and "the clearest example of traditional state authority is the punishment of local criminal activity." Bond, 572 U.S. at 858. Federalism concerns demand that this division of authority between the federal and state governments be respected. No treaty—and no statute enacted to implement a treaty—may upset this balance.
  • Tall Paul||

    If this is what it takes to get liberals to recognize limitations on the commerce clause, then so be it.

  • ReaderY||

    I agree with the District Court that the law is a general criminal law with no nexus to interstate commerce or other enumerated federal powers, and hence is beyond the power of Congress to enact.

    That said, I don't think it's the job of a federal judge to officially decree what the nature of the act involved is, whether a crime of violence, a medical procedure,a religious ritual, or something else. Any opinion of what if is is an essentially political opinion. Whether it is an inherently evil, horrible, abusive act, or whether those who practice it are being subjected to irrational animosity and claims that it causes any harm are greatly exaggerated, is also an essentially political question. It is not the business of the federal courts to resolve such questions, or decide whether the half the states that outlaw it or the half the states that don't are right.

    The judge would be entitled to add an appendix stating his own personal political opinion, stated as such. But his legal opinion should stick to the law.

    I am skeptical that procedures which can be shown to be no more invasive than circumcision are any more deserving of prohibition, or any less protected by religious liberty when done for religious reasons.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online