Why the Federal Law Banning Female Genital Mutilation is Unconstitutional

FGM is a horrible crime. But banning it is one of many issues the Constitution leaves to the states, much like banning rape and murder. Yesterday's court decision striking down the law was correct.


World Health Organization infographic on female genital mutilation.

Yesterday's federal district court decision striking down the federal law banning female genital mutilation may seem cruel or unfeeling. But it is nonetheless correct. FGM is a terrible crime; one that deserves severe punishment. But it is nonetheless an issue the Constitution leaves to the states—as is also the case with the punishment of many other awful crimes, include, rape, murder, and assault. The federal government offers multiple theories under which this law is authorized by the Constitution. Judge Bernard Friedman was nonetheless, right to reject them, though on one point he should have taken the analysis a bit further.

Article I of the Constitution does not give Congress any general power to suppress crime or child abuse. Therefore, the federal government tried to shoehorn the FGM ban into the Commerce Clause, which gives Congress the power to regulate interstate commerce. On first principles, it is pretty obvious that, at least in most cases, FGM is not a form of interstate commerce. It is generally performed within one state and often isn't even a commercial transaction. However, misguided Supreme Court decisions have interpreted the Commerce Clause so broadly that they now allow Congress to regulate virtually any form of "economic activity," even if it is only performed within a single state, and even some forms of "noneconomic" activity, so long as banning it is part of a broader "regulatory scheme" aimed at an interstate market. But, as Judge Friedman explains, the FGM ban does not fit even these broad criteria, and is also at odds with previous Supreme Court decisions, including United States v. Morrison (2000), which make it clear that the Commerce Clause does not give Congress the power to ban local violent crime:

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 [Paul] 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." [United States v.] 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.

If Congress does not have a general power to forbid violence against women or other violent crime—such as rape and murder—it also does not have the power to ban FGM. Like other crime, FGM, of course, has some effect on interstate commerce. But if the Commerce Clause gave Congress the power to forbid any activity that affects interstate commerce in some way, it would have the power to ban virtually anything, as almost any type of human behavior has some effect on what people buy, sell, or transport in interstate trade. And if the Clause really did give Congress that kind of virtually unrestricted authority, there would be no need for many of the other enumerated powers of Congress, since the Commerce Clause would be enough to give the federal government the power to ban or regulate pretty much anything it wants. For example, there would be no need for the government to have the power to make rules for the "government and regulation" of the armed forces, or the power to regulate and organize state militias, since the activities of both federal and state armed forces surely have an impact on interstate commerce (a far larger one than FGM, in fact).

The federal government is on stronger ground in arguing that the federal FGM ban is authorized by a combination of the treaty power and the Necessary and Proper Clause. The Necessary and Proper Clause gives Congress the power to make laws that are "necessary and proper for carrying into execution" other federal powers. In this case, the relevant federal could be the power to make treaties, specifically the International Covenant on Civil and Political Rights (ICCPR). Judge Friedman effectively explains why the FGM ban cannot be justified as a tool for enforcing Article 3 of the ICCPR, which requires states to "to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant." As he points out "[t]his article seeks to ensure equal civil and political rights (e.g., the freedom of expression, the right to participate in elections, and protections for defendants in criminal proceedings) for men and women, while the FGM statute seeks to protect girls aged seventeen and younger from a particular form of physical abuse."

The federal government also claims that the FGM ban is needed to enforce Article 24 of the ICCPR, which states that "[e]very child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State." Judge Friedman argues that the FGM law does not really advance the "antidiscrimination" purposes of Article 24 because it "it does not logically further the goal of protecting children on a nondiscriminatory basis." Here, I think Judge Friedman potentially misses a key point. To the extent that FGM targets almost exclusively girls rather than boys, and the practice is the result of ingrained sexism in the societies that engage in it, it seems likely that banning really does help ensure that girls get the "measures of protection" needed by minors on par with boys. The connection between FGM and gender-based discrimination against girls is much stronger than Judge Friedman suggests.

Nonetheless, it doesn't follow that a federal FGM ban is constitutional. As Judge Friedman notes, "federalism concerns deprive Congress of the power to enact this statute" even if it is otherwise within the scope of the ICCPR. The treaty in question requires implementation in accordance with the "constitutional processes" of signatory states, and federalism is one of those processes, in the case of the US. Judge Friedman points out that 27 states specifically ban FGM under state law, and others clearly forbid it under more general laws banning assault and child abuse. These state laws are sufficient to carry out US treaty obligations. There is no indication that state officials are somehow unwilling or unable to pursue FGM cases.

There is a deeper question here about the extent to which the federal government even has the power to sign legally binding treaties on subject matter that is otherwise outside the scope of federal authority. In my view, for reasons summarized here, federal treaty power only extends to making commitments on issues otherwise within the scope of federal authority.

In Bond v. United States II (2014), as Judge Friedman points out, the Supreme Court ruled that a treaty that authorized Congress to pass laws banning "purely local crime" would raise serious constitutional problems, and might well be unconstitutional. The issue has not definitively resolved, and may have to await a future Supreme Court decision. Perhaps the justices might even address it in this case, if it ever reaches the Supreme Court.

Many readers may wonder why it matters whether FGM is banned by state law or federal. Almost everyone agrees it is a brutal practice that should be suppressed. Why, then, should get hung up on legal technicalities about federalism? But if we interpret the Commerce Clause broadly enough to cover FGM, it would also give the federal government the power to ban or restrict almost any other activity that effects the economy in some way. If we interpret the treaty power that broadly, the federal government could then acquire the power to ban almost any activity simply by finding a foreign power willing to sign a treaty on the subject (assuming the treaty is then ratified by the Senate).

Such a massive concentration of power in the federal government is dangerous, particularly in a society that is both highly diverse and deeply polarized, If we want to preserve constitutional limits on federal power, we should resist the temptation to make every awful practice a federal crime—especially in a case like this one where state law is more than up to the job.

NEXT: Restructuring Federal Criminal Defense

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.

  1. “In my view, for reasons summarized here, federal treaty power only extends to making commitments on issues otherwise within the scope of federal authority.”

    I’d love to be persuaded of this, because we’re ratified many federalism-restricting idiot treaties.

    But this may be a case where I’m not convinced the Constitution is where I’d like it to be.

    I think I’ve read the argument against the treaty power once before. Maybe I’ll check it again to see if it is convincing this time.

  2. But if we interpret the Commerce Clause broadly enough to cover FGM, it would also give the federal government the power to ban or restrict almost any other activity that effects the economy in some way.

    Somin is a lawyer, right? He has reviewed some of the Supreme Court’s rulings… right?

  3. You mean like abortion?

  4. Doesn’t the federal government have jurisdiction over “ordinary” crimes on federal land? Doesn’t that mean that the statute is actually constitutional as applied to federal lands but not as applied to other lands?

    1. Yes, with the proviso that the federal government only has such jurisdiction ” over all Places purchased by the Consent of the Legislature of the State in which the Same shall be“; If the federal government hasn’t obtained the consent of the state legislature, it’s only an ordinary land owner, and that jurisdiction doesn’t apply.

      Now, get the federal government to admit that it’s jurisdiction is so limited…

  5. What about FGM committed by American citizens/residents abroad? Would the states have jurisdiction over that? Or would that unavoidably land with the Feds?

    1. Neither, it would fall within the jurisdiction of the nation in which it was committed.

      1. Given that some foreign countries don’t criminalise FGM, or don’t enforce the laws that criminalise it, many countries criminalise FGM even when it is committed abroad. Eg. the UK Female Genital Mutilation Act 2003. I’m not sure if such a law exists in the US. (There’s a federal law that forbids it, as do 26 states apparently, but I don’t know if any of that has extraterritorial effect.)

        1. The US federal law on FGM has been ruled unconstitutional by at least one judge.

          As to extraterritorial laws, the US has a few that have been upheld. But aside from enforcement of “the law of the sea” which IIRC was explicitly authorized by the constitution, the constitution, the few that exist have been upheld on fairly narrow grounds with the Supreme Court expressing general skepticism of extraterritorial law.

          1. Yes, but that’s a matter of comity between nations, not vertical separation of powers between the feds and the states.

      2. Falling within the jurisdiction of the nation in which it was committed doesn’t preclude it also falling under some US jurisdiction. A similar situation exists with respect to sex tourism, prohibited under 18 USC ? 2423(c) which provides

        Any United States citizen or alien admitted for permanent residence who travels in foreign commerce or resides, either temporarily or permanently, in a foreign country, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

        and has been upheld against constitutionality challenges in several circuit courts of appeal, e.g. US v. Clark, even though the “foreign commerce” connection to the prohibited act is not particularly substantial.

        1. Thanks, and yes, that’s what it would have to be: foreign commerce.

        2. Except that this law doesn’t punish the illicit sex, which is under the jurisdiction of the foreign country. It punishes the “tourism” to the country, which presumably starts or ends in U.S. jurisdiction, where it would be outside the jurisdiction of the foreign country.

          1. Larry, I don’t know where you get that idea. Someone can be a United States citizen residing in a foreign country without traveling from the US, in fact without ever having set foot in the United States, and if they engage in one of the prescribed acts they will be in violation of this section. The other country may very well want to punish them too.

            1. “prescribed” -> “proscribed”

              Stupid missing edit function.

  6. As for Treaties, it would seem peculiar (to put it mildly) to give the Federal government the exclusive power to make treaties, but to deny it the power to keep its promises by enacting implementing legislation. What is the Federal government supposed to do if the President, with the advice and consent of the Senate, had signed up to some global version of the Istanbul Convention on Violence Against Women? Ask the states pretty please would they please make the appropriate legislation? Hat in hand?

    1. Could you give me the run-down of how state laws fail to comply with the mandates of the convention, assuming some such mandate was incorporated into a treaty the U. S. ratified?

      1. I actually found the treaty I had in mind. (It wouldn’t come to me yesterday, so I ended up linking to the Istanbul convention instead.) The treaty is called CEDAW, the Convention on the Elimination of all forms of Discrimination Against Women. Unsurprisingly though, the US has signed it but not ratified.

        As for implementation, the chances of getting 50 independent jurisdictions to comply with just about any voluntary norm is slim to none. In this case, I’ve just discovered that only 26 states explicitly outlaw FGM. Granted, that’s probably a bad example, because presumably all 50 outlaw assault, but it’s also not great optics. More generally, I fully imagine that some southern state still doesn’t outlaw rape within marriage, or something similarly embarrassing and bad for the foreign relations of the United States.

        1. presumably all 50 outlaw assault

          Sort of. Those 50 state laws may have different definitions, conditions, exceptions, and aggravating circumstances, which means the “assault” laws differ from state-to-state.

          So, some of the 24 states that don’t “explicitly outlaw FGM” may have laws prohibiting substantially the same act under a different name.

    2. And I say it would be peculiar to give the federal government limited and enumerated powers, but enable it to circumvent any limits on those powers by finding a cooperative foreign government with which it could make a treaty on the relevant subject matter.

      1. Amen.

      2. Absolutely right (I think). I immediately thought of this ‘loophole,’ and I’m glad to see that others were thinking (worrying??) along the same lines.

        1. It’s only a “loophole” if you think that the constitutional division of powers between the federal government and the states is based on the premise that democratically elected politicians can’t be trusted, rather than on some sense of which things are best arranged at which level, with a massive “loophole” explicitly built in, in the form of the necessary & proper clause.

    3. Article I, Section 8 gives Congress the power:

      “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

      The key word is “proper”. Any law they make that violates the Constitution would not be “proper”. BOTH “necessary” and “proper” is required, not EITHER “necessary” or “proper”.

      1. What’s not proper about implementing a treaty properly signed and ratified by the President with the advice and consent of the Senate?

        1. There is an argument that a treaty purporting to give the federal government a power not expressly granted in the constitution (all other powers not so granted are expressly prohibited to the federal government by 10A) would be in and of itself improper and therefore void.

          1. Sure, but that argument would be stronger if the treaty-making power in art. II somehow referred back to the powers of Congress in art. I. After all, the list of areas where Congress can legislate is a grant of power to that branch, and it is conceptually separate from the grants of power to the President in art. II (and the grant of power to the judiciary in art. III).

          2. Second Amendment supporters are looking at this with relation to the U.N. Arm Trades Treaty.

    4. How far would you carry this?

      Can the Feds enter into a treaty with Iran that requires all residents of both countries to face Mecca and pray five times a day and then pass Federal laws that require all U.S. residents to do so even though this would obviously violate the Establishment Clause of the First Amendment?

      What about encroaching on an unenumerated right? Can the Feds enter into a treaty with the Vatican which agrees to ban abortions at any stage and then pass laws banning abortions?

      What about something that is clearly not within the powers of Congress (surely you can think of at least ONE power that is not an enumerated power of Congress and which, as reinforced by the plain wording of the Tenth Amendment, is therefore reserved to the people or states)? Let’s assume, for the moment, that Congress does not have the enumerated power to regulate how many hours a day an individual sleeps and then enters into a treaty with the Republic of Insomniac States that prohibits anyone sleeping more than six hours per day. Would the Feds then have the power to pass laws banning anyone from sleeping more than six hours per day?

      I think the answer is “NO” in all cases.

      1. I can’t believe that I have to spell this out, but there is a clear difference between constitutional provisions that forbid the government (any government, in fact) from doing something, and the absence of a constitutional provision creating a power to do something. The question we’re concerned with here is whether a legal basis is needed for implementing treaties other than the necessary and proper clause, not whether the necessary and proper clause somehow magically overrules the first amendment.

        1. Actually, the 10th amendment wrote into the Constitution the exact opposite principle: That the absence of a constitutional provision creating a power to do something DOES forbid the (federal) government from doing it.

          1. That doesn’t answer the question, since the whole argument is about whether the necessary and proper clause is such a grant of power. The 10th amendment adds nothing to this discussion (or to any other discussion in the history of the United States).

            1. Of course it answers the question. You might not like the answer, though.

        2. I guess you didn’t bother to read the penultimate paragraph in my comment?

          You also didn’t respond to how you would reconcile the three general cases I mention. I think your premise falls apart on the second case and is completely demolished by the third case where the Tenth Amendment puts the last ring shank nail in the coffin containing your premise. Congress is expressly forbidden from exercising any power that isn’t expressly granted to them. There’s no reason to believe that the intent was that a treaty (which the House doesn’t have any role in enacting) could override this restriction.

    5. It would be even more peculiar to write a constitution which limits the authority of the federal government, and requires state consent to amend, and then permit the President and Senate to extend that power any time they can get another country to agree to the extension.

      Treaties obligate the federal government in the exercise of the power it already has. That’s the best interpretation, unless you affirmatively want to make hash of enumerated powers doctrine.

      1. Well, treaties obligate the United States to do things. Which instrumentality of the United States, including its subdivisions, is responsible for compliance is of no consequence. But someone should be. Under the original understanding of the Constitution, treaties were directly binding on the States, and so the issue of Congress’s power to enact implementing legislation didn’t arise. Since the original understanding of the supremacy clause with respect to treaties was carefully erased by the Supreme Court, now you’re in a situation where are whole swathes of treaties that the President would like to make, with the advice and consent of the Senate, because they think in good faith that such treaties would be beneficial to the foreign relations of the United States (etc), but which they can’t because they cannot guarantee that the United States will keep its promises.

        Under the Articles of Confederation, the States could make their own treaties. In some other federal states, the subdivisions can do so even today. (Eg. Belgium and Germany.) When the states surrender this power to the federal government, they must also have surrendered the power to ensure compliance with treaty commitments.

        The only coherent response to this is to say that the Constitution forbids the making of certain treaties (see above). That position is coherent, I just don’t see how it has any basis in the text of the Constitution.

    6. Prof. Somin linked to Bond v. US where the Court came deliciously close to a decision on this question, but managed to squirm away to the annoyance of Justices Scalia and Thomas. Yes, it would seem peculiar, but there are reasonable arguments that this is precisely the case, that the United States may enter into treaties that it may end up in perpetual violation of and with no power to cure that violation except through the cooperation of the states.

    7. In that case Congress would want to begin the process of amending the Constitution to make themselves able to comply with the treaty. Preferably before the Senate ratifies the treaty.

  7. Could President Trump make a treaty with the Holy See calling for the outlawing of abortion and, if he could get 2/3 of the Senate to vote for ratification, use that as a basis for federal legislation criminalizing the procedure?

    1. What about the American Convention on Human Rights?

      “Article 4. Right to Life

      “1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”


      1. If Congress thinks that this commits the US to banning abortion, they’d presumably face an uphill battle in terms of treaty interpretation, but otherwise they’d be perfectly entitled to ban abortion subject to the limits of Planned Parenthood v. Casey. Treaties and Statutes are both the supreme law of the land, but not supreme over constitutional constraints on lawmaking.

        1. Why would a treaty regarding abortion be any more subject to restrictions of a judicial decision such as Planned Parenthood v. Casey than a treaty that purported to extend Congressional power beyond that which they are explicitly granted, and restricted to, in the plain text of the Constitution and BoR?

          If you’re position is correct, we are in big trouble. I’ll bet that when Republicans get a 2/3 majority in the Senate and a Republican sits in the White House (as will happen sometime in the future) that they could get a small nation (such as Nuaru, population under 15,000 and land area of less than ten square miles) to agree to a treaty that gives the small nation $1M/person annually from the US in exchange for signing the treaty which includes provisions preventing the Federal, State, or local governments from providing any social programs such as welfare, SNAP, Medicaid etc to US residents.

  8. But if we interpret the Commerce Clause broadly enough to cover FGM, it would also give the federal government the power to ban or restrict almost any other activity that effects the economy in some way.

    Don’t you mean “affects”?

    1. Hmmm. In this case, both words would make sense (although, of course, meaning different things). So, not sure it’s a typo.

    2. Completely agree. “to effect”, when used as a transitive verb, has a quite narrow meaning, the same as “to put into effect”. It’s not at all synonymous with “to affect”.

  9. But if we interpret the Commerce Clause broadly enough to cover FGM, it would also give the federal government the power to ban or restrict almost any other activity that effects the economy in some way.

    Isn’t it commonly accepted that that’s where we already are with the commerce clause? My first reaction to this ruling was that it seemingly establishes a new precedent opening the door to roll back the longstanding abuse of the commerce clause to cover everything under the sun in the supposed service of regulating interstate commerce.

    1. It’s accepted by the courts as a result of Wickard v. Filburn, but I dare say most of us here consider that one of the worst decisions ever to come out of SCOTUS, and we daily hope it will be overturned soon.

  10. There is a deeper question here about the extent to which the federal government even has the power to sign legally binding treaties on subject matter that is otherwise outside the scope of federal authority. In my view, for reasons summarized here, federal treaty power only extends to making commitments on issues otherwise within the scope of federal authority.

    This, to me, is both overbroad and underinclusive. The Treaty Power should be limited to matters that touch upon international relations in some form. A treaty protecting citizens of one country when they are in the other country (Yick Wo v. Hopkins, 118 U.S. 356 (1886)) would clearly qualify, even if it impinges on local laws and prerogatives.

    Similarly, conservation of a natural resource that by nature is shared by two countries would qualify. (Missouri v. Holland)

    Conversely, I fail to see how U.S. law treats its own citizens (for example, permitting or outlawing abortion or FGM) has anything to do with international relations in the traditional sense. The fact that some practice offends the sensibility of other countries is not alone a reason to use the Treaty Power to ban it.

    1. After WW Two, there’s been quite a spurt of human-rights treaty-making on the assumption that a country which violates its own people’s rights is a threat to international peace.

      1. …at at the very least generates embarrassing refugee problems.

  11. While the conclusion of the FGM case seems correct, it is hard to square with cases holding, for example, that the federal govt may ban the possession of a small amount of marijuana for personal use, or, for that matter, may ban growing wheat on one’s own property to feed one’s own family.

    1. The decision explicitly answers this.

      There exists an interstate market for wheat. The Supreme Court in its wisdom has decided that Congress has the power to make laws to regulate that market, including activities that, if many people did them, would significantly affect that market. Filburn growing feed for his animals (not for his family, by the way) instead of buying it slightly reduced the demand and thus depressed the price; if many other farmers did the same they would significantly reduce the demand and depress the price. Therefore they are participants in that market and Congress can forbid them from growing the feed.

      The same considerations apply to marijuana, except that the market that undisputedly exists is illegal. Raich’s lawyers hoped that would make a difference. The Court said no, legal or not the market exists, so Congress can regulate it. If Raich and other growers didn’t grow their own they’d have to buy it, thus growing their own reduces demand and depresses the price.

      However there’s no interstate market for FGM. That’s the difference. Without a market there’s nothing for Congress to regulate, and therefore to catch the defendants up in.

      1. Except that it’s a BS rationalization. There isn’t much of an interstate market in FGM, but there’s obviously some: In the immediate case they traveled interstate, and paid for the procedure. That is, definitionally, an interstate market.

        Mind, Wickard and Raich are even more BS rationalizations. So it’s BS excuse for why a BS precedent doesn’t apply in this one tiny carve out a judge wants to create. It’s BS all the way down.

        1. “In the immediate case they traveled interstate, and paid for the procedure.”

          According to the quoted sections of the decision in the other VC article, the court said that there was no evidence presented by the federal government that they had paid for the procedure.

  12. So the federal government doesn’t have the power to ban FGM, but it does have the power to ban states from banning gay buttsex/marriage. Why is that?

    1. Because of hypocrisy, obviously. They’re the exact same thing. Literally identical. You’re so right. Spot on.

    2. The federal government doesn’t ban states from banning gay buttsex/marriage. The constitution (according to the Supreme Court) does that.

  13. Where did the clitoris-cutting knife come from? Interstate commerce!

    1. Irrelevant. Congress could presumably ban the purchase of knives for the purpose of FGM, since there’s an interstate market for knives. But once the knife is purchased it’s no longer in the market, and Congress can’t dictate how it’s used by the purchaser.

      1. So what about the Federal Drug Paraphernalia Statute. Plastic baggies and scales are not like that knife?

      2. Your argument was specifically refuted by the Ollie’s Restaurant case. The tomatoes and bread and condiments were products of interstate commerce. It did not matter that the menu item was purchased and consumed in-state.

        1. Katzenbach v McClung, 379 U.S. 294 (1964).

          1. That decision is irrelevant here. It was based on the (alleged) fact that racial discrimination by restaurants causes negroes from other states not to travel to the area, and therefore “that established restaurants in such areas sold less interstate goods because of the discrimination, that interstate travel was obstructed directly by it, that business in general suffered, and that many new businesses refrained from establishing there as a result of it”.

            It was also based on the fact that food is a restaurant’s stock in trade, and since they source it from a national market they’re inherently engaging in interstate commerce. The food they buy and sell is still in commerce, and is still part of the national market. This would not be the case at all if restaurants typically sourced their food locally, and only their kitchen equipment and furniture and fittings was bought from interstate. They’re not selling those things, so once they have been bought they’re no longer in commerce. Further, if all restaurants were to source their food locally the interstate market would crash; if all restaurants were to fit out their kitchens and dining rooms locally it would have no significant effect on any national market.

  14. I think it is right to say that it is “peculiar” to grant the federal government only enumerated powers subject to express limitations but then provide a mechanism – through the treaty power – to undermine that structure. I agree that we, citizens of the U.S., should much prefer an interpretation of these provisions that ensure that the federal government cannot expand its powers or avoid its limitations by means of a treaty-workaround. And I will tend to believe that the federal courts, including in particular our current SCOTUS, will take that view.

    All that having been said – I think that textualists have a bit of a quandary reaching the “right result” on this question. Likely originalists as well. Because while it might well be conceded that the founders never intended our Constitution to work in this way, it may simply be a design flaw that they failed to anticipate. We may, in other words, be simply stuck with some dueling provisions that produce a “bad result” – at least as long as we’re constraining ourselves to originalist principles.

    In this case, it would appear that the treaty has been drafted carefully so as to avoid any direct conflict with the Constitution – it does not purport to empower Congress to do something that they would not otherwise be empowered to do.

    1. Remember, treaties were supposed to have direct effect, so then there would be no need for Congress to use any of its enumerated powers to enact implementing legislation.

  15. I agree with Professors Volokh and Somin, and the District Court, that Congress cannot enact a general criminal statute that lacks a jurisdictional nexus to an enumerated federal power.

    My question is: Do people who think this practice should be banned also think that clit piercing should be banned? Ear piercing?

    It seems to me the fact that laws of this nature do not cover things like clit piercing is strong evidence that it is the type of people, not the nature of the act, that they are targeting. The defendants involved are doctors who claim they are performing symbolic nicks. It seems hard to understand why it can be seriously maintained that their practice results in more objective body “mutilation” than clit piercing.

    I’m asking this as a serious question to the Conspiracy community. Nobody regards people who do clit piercing as misogynistic ally mutilating women, or women who do it as engaging in mysogynistic self-mutilation. If, as claimed, the doctors simply do symbolic nicks, clit piercing would be the more objectively invasive procedure. What’s the justification for forbidding one and permitting the other, other than we don’t like the kind of people who do one but like the kind of people who do the other?

    I’m asking a serious question.

    1. The statute doesn’t apply to “symbolic nicks” – is specially calls out excision and infibulation. The statute also only applies to minors – it cannot be used against someone over 18 voluntarily asking for the procedure.

      However, the statute does also apply to circumcision, which is different entirely. Like male circumcision, that procedure is not harmful to the functioning of the body.

      Mutilating a minor, as in performing major non-beneficial permanent and irreversible non-medically required surgeries on a child, is generally considered a bad thing. I don’t know why it was necessary to make a new law here, rather than just adjust the definition of assault/etc to include FGM. Political posturing?

      But the act itself should be questionable, just like a child’s cosmetic penectomy or mastectomy.

      1. “Like male circumcision, that procedure is not harmful to the functioning of the body”
        Are you saying that male circumcision is not harmful? If so, you are not correct. Male circumcision does great harm to the functioning of the body both mechanically and neurologically. 2/3 of the total nerve endings are eliminated in a stroke leaving behind a severely diminished member.

  16. How is this morally different than circumcision?

    There is nothing in the US or state Constitutions that allows government to ban products or services.

    1. There doesn’t have to be anything in state constitutions. Congress has only the powers explicitly granted to it. States have unlimited powers except where their constitutions or the federal one restrict them.

      1. Then why do states list powers that they have?

        States gave up pleniary powers when they joined the USA.

        Any leeways states had was gutted by the 14th Amendment which requires a minimum standard for state constitution in keeping with federal rights, immunities, and privilgese afforded all US Citizens.

        1. Then why do states list powers that they have?

          They don’t. Some state constitutions have chosen to limit their legislatures to enumerated powers. Most have not. In any event it is none of the business of any federal court.

          States gave up pleniary powers when they joined the USA.

          No, they did not. They gave up only a few powers, such as the right to conduct their own foreign affairs, etc., as well as accepting the supremacy of (properly made) federal laws over their own laws and constitutions.

          Any leeways states had was gutted by the 14th Amendment which requires a minimum standard for state constitution in keeping with federal rights, immunities, and privilgese afforded all US Citizens.

          The 14th did indeed significantly reduce state powers by prohibiting them from making laws that violate the rights protected by the US constitution, but it absolutely did not limit them to enumerated powers. States remain free to make whatever laws they like, on any subject they like, so long as they are not prohibited by the constitution or by US law. In examining a state law in federal court, it is never valid to ask what authorized the state to make such a law. Instead the only question is what prohibits it from making such a law. If you can’t find a prohibition then by default it is permitted, which is the exact opposite of what happens with federal laws.

    2. How is piercing a kid?s ears to mae holes for earrings morally different from cutting their ears off? That?s what you?re asking? BTW, I see circumcising little boys as wrong, too, but nowhere near as wrong as this.

  17. Abortion is considered a human rights violation to many parts of the World and that is perfectly legal here in the USA.

  18. *strokes chin* Why yes, indeed, this is one of those matters left to the states…. *bursts out laughing*

    Sorry, this is just too ridiculous to take seriously any more, in the context of abortion and gay marriage rulings, and from a judge who himself issued laughable gay marriage decisions.

  19. It sounds like the left has finally found the outer limit of the commerce clause. To me it is more about finding a “Muslim exception” in the penumbras and emanations. I doubt that the decision would have come out the same if the activity at issue was a Christian religious practice.

  20. I wasn’t aware of this case till now, and my initial web search didn’t find the answer to this question: *why wasn’t this prosecuted by the state under Michigan law*?

  21. So what would happen if States legalized murder against females?

  22. It’s interesting that a supporter of “Libertarianism” is so willfully negligent of the movements own creeds:

    From lp.org:

    “As Libertarians, we seek a world of liberty: a world in which all individuals are sovereign over their own lives and are not forced to sacrifice their values for the benefit of others.”

    This case outlines the vast complexities of FREEDOM – As so-called “FREEDOM” for one is often OPPRESSION/REPRESSION for another.

    And thus is the very REASON that “Libertarianism” is wholly unsustainable.

    In addition:
    As per stats, most FGM’s are preformed on girls under the age of 5. Thus they lack the ability to give consent to the procedure.
    The “LIBERTARIAN” creed extends rights to ALL INDIVIDUALS, not just those over a certain age.

    Whereas Somin haphazardly relies on his inadequate Constitutionality questions, he neglects to comprehend that:
    ? There are other issues of Constitutionality herein, and
    ? The Framers understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time.

    Thus, he ignores outright simple Constitutional statements such as “cruel and unusual punishments [shall not be] inflicted.” (8th Amendment).
    And, nothing written in the Constitution is set in stone, as a guide for unwavering rule.

    1. FGM is often performed as part of a “cultural norm” to control a womans sexuality and promote chastity, when premarital sex is often considered a crime, thus can easily be construed as a pre-punishment for the assumption of the future act that “crime” will be committed.

      The Constitution does not explicitly state that this clause applies only to punishment inflicted AFTER any alleged “criminal” activity.

      So, Somin, you want to use LITERAL translations of the ACTUAL wording of the Constitution?
      “…nor cruel and unusual punishments inflicted.”

      1. “Libertarians” often regard Thomas Gordon and John Trenchard as Fathers of “Libertarian” thought.

        Perhaps Somin, and the dolts at Reason need to read, or re-read the works of Gordon & Trenchard:
        Cato’s Letter No. 42
        Considerations on the Nature of Laws

        “Law is right reason, commanding things that are good, and forbidding things that are bad; it is a distinction and declaration of things just and unjust, and of the penalties or advantages annexed to them.”

        “The essence of right and wrong does not depend upon words and clauses inserted in a code or a statute-book, much less upon the conclusions and explications of lawyers; but upon reason and the nature of things, antecedent to all laws.”


        “The last thing abandoned by a party is its phraseology, because among political parties, as elsewhere, the vulgar make the language, and the vulgar abandon more easily the ideas that have been instilled into it than the words that it has learnt.”

        “Even despots accept the excellence of liberty. The simple truth is that they wish to keep it for themselves and promote the idea that no one else is at all worthy of it”
        -Alexis de Tocqueville-

  23. I once read a book of Ilya Somin’s (Democracy and Political Ignorance) and enjoyed it.
    But the more I read from this guy, the more I realize what an absolute idiot he is.

    Somin is a Professor of Law at George Mason, and yet he seemingly fails to recognize the basic tenet that man’s written law is NOT A THING IN & OF ITSELF.
    Written law is just words, words that are easily interpreted differently by different people.

    EVERYONE has personal cognitive biases & opinions, and the best ANYONE can do is realize their own biases.
    Thus, their interpretation of others’ words are not the only interpretations.

    Somin frequently gripes about the intrusion of government, but then relies on legal precedent set by those governments.
    Who’s to say those legal precedents he cites are the correct ones?

    They are merely the words of fallible human beings, error-prone humans whom are trying to decipher the thought and words of others.

    Just as Somin cites case law supporting his argument, he also often critiques case law that opposes his arguments.

    He engages solely in “Confirmation Bias”.

    Somin applauds the striking of a perhaps congressional overstep, but fails to applaud the reliance on Constitutional protections.
    Ok, so who cares what Congress wrote, as Somin criticizes the acts of governments, let’s go back to the concept of “Natural Law.”

    Don’t rely on the same legal system you frequently criticize, Somin.
    That’s called hypocrisy.

  24. “To the extent that FGM targets almost exclusively girls rather than boys, and the practice is the result of ingrained sexism in the societies that engage in it, it seems likely that banning really does help ensure that girls get the “measures of protection” needed by minors on par with boys”
    Are you kidding. You are completely turning a blind eye to the Male Genital Mutilation that permeates American society. Are you ignoring the fact that MGM is the result of ingrained sexism in our society ? How about giving boys “measures of protection” on par with girls?

  25. As a state law matter, the police power includes a right to ban body modification of any kind as “mutilation,” anything from ear piercing and tattooing to tribal practices to transgender surgery. The police power extends unless there is an enumerated exception.

    Most people have kinds of body modification they consider acceptable and kinds they consider unacceptable, most try to find some sort of high-sounding basis for justifying the kinds they find acceptable and condemning the kinds they find unacceptable, and many try to gerrymander the constitution so that it protects what they like and condemns what they don’t.

    I think all of these distinctions are perfectly legitimate to make as state policy, but are illegitimate as constitutional law. The state has just as much right to condemn ear-piercing or FtM transgender surgery as female body “mutilation,” as it does to condemn this. And if the First Amendment protects male circumcision, as I suspect it does, then it also protects forms of female body modification done as religious practices if they are no more invasive than circumcision.

    The courts have to be neutral about all of this. It just isn’t their business to condemn the forms of body modification the Justices personally disapprove of, or to protect the forms they personally think OK. It’s legislatures’ business, not the courts’, to decide what the policy should be and where lines should be drawn.

  26. On first principles, it is pretty obvious that, at least in most cases, FGM is not a form of interstate commerce. It is generally performed within one state and often isn’t even a commercial transaction.

    Does “often” in this sentence mean “sometimes” or “normally”? I wouldn’t expect the feds to loose jurisdiction just because someone can identify a few cases where the deal was done non-commercially…

    Relatedly, what is the overall expectations in this procedure? For example, I know it’s customary to give one’s priest/pastor a tip following a marriage ceremony. Is that still non-commercial? Compare/contrast that much modern commercial activity is primarily organized around tips / loss-leaders.

Please to post comments