Can Congress authorize battered wives, rape victims, and other people harmed by gender-motivated crimes to file federal civil rights lawsuits against their assailants? That’s what Congress did in the Violence Against Women Act (VAWA) of 1994, and that’s the specific question on which the Supreme Court will hear arguments on Jan. 11 in United States vs. Morrison.

The broader issue is whether the justices should expand states’ rights by striking down the VAWA provision, despite congressional findings that a federal remedy is necessary to combat discrimination against victimized women in state justice systems and to enable such women to participate fully in the economic life of the nation and in the interstate commerce that Congress is empowered to protect.

This may be the biggest states’ rights case since 1992, when the justices began breathing new life into the federalist principle that the national government has limited powers and may not unduly encroach upon the domain of the states.

It’s an easy case for many liberals, who support VAWA, and for many conservatives, who would love to see it struck down. It is likely to be a hard case for the two centrist justices whose votes will almost certainly determine the outcome: Sandra Day O’Connor-whose passions include both states’ rights and women’s rights-and Anthony M. Kennedy.

It’s certainly a hard case for me. Part of me wants the court to strike down the statute as an unwarranted, largely symbolic exercise in political correctness that will do little for victims of violence and even less for interstate commerce. But judicial restraint argues for upholding the statute as a (barely) plausible exercise of Congress’s necessarily broad power to regulate activities that have a substantial effect on interstate commerce.

First, some background: After extensive hearings between 1990 and 1994, Congress (then controlled by Democrats) found on the basis of a massive legislative record that violence against women is an immense national problem, exacerbated by pervasive bias against battered women and rape victims on the part of many state and local police, prosecutors, judges, and jurors. The evidence included reports by judicially appointed task forces that widespread gender bias existed in the legal systems of some 20 states. Congress also found that inadequately remedied violence takes a multibillion-dollar toll on the national economy, and thus impedes interstate commerce, by driving many women from the work force and preventing them from traveling and engaging in various economic activities.

In passing VAWA to address these problems, Congress approved $1.6 billion in federal spending over six years for state, local, and tribal programs to reduce violence against women; adopted new criminal provisions punishing domestic violence that crosses state lines; and adopted the so-called "civil rights" provision authorizing victims of crimes of violence "motivated by gender" to sue their assailants.
Can Congress authorize battered wives, rape victims, and other people harmed by gender-motivated crimes to file federal civil rights lawsuits against their assailants? That’s what Congress did in the Violence Against Women Act (VAWA) of 1994, and that’s the specific question on which the Supreme Court will hear arguments on Jan. 11 in United States vs. Morrison.

The broader issue is whether the justices should expand states’ rights by striking down the VAWA provision, despite congressional findings that a federal remedy is necessary to combat discrimination against victimized women in state justice systems and to enable such women to participate fully in the economic life of the nation and in the interstate commerce that Congress is empowered to protect.

This may be the biggest states’ rights case since 1992, when the justices began breathing new life into the federalist principle that the national government has limited powers and may not unduly encroach upon the domain of the states.

It’s an easy case for many liberals, who support VAWA, and for many conservatives, who would love to see it struck down. It is likely to be a hard case for the two centrist justices whose votes will almost certainly determine the outcome: Sandra Day O’Connor-whose passions include both states’ rights and women’s rights-and Anthony M. Kennedy.

It’s certainly a hard case for me. Part of me wants the court to strike down the statute as an unwarranted, largely symbolic exercise in political correctness that will do little for victims of violence and even less for interstate commerce. But judicial restraint argues for upholding the statute as a (barely) plausible exercise of Congress’s necessarily broad power to regulate activities that have a substantial effect on interstate commerce.

First, some background: After extensive hearings between 1990 and 1994, Congress (then controlled by Democrats) found on the basis of a massive legislative record that violence against women is an immense national problem, exacerbated by pervasive bias against battered women and rape victims on the part of many state and local police, prosecutors, judges, and jurors. The evidence included reports by judicially appointed task forces that widespread gender bias existed in the legal systems of some 20 states. Congress also found that inadequately remedied violence takes a multibillion-dollar toll on the national economy, and thus impedes interstate commerce, by driving many women from the work force and preventing them from traveling and engaging in various economic activities.

In passing VAWA to address these problems, Congress approved $1.6 billion in federal spending over six years for state, local, and tribal programs to reduce violence against women; adopted new criminal provisions punishing domestic violence that crosses state lines; and adopted the so-called "civil rights" provision authorizing victims of crimes of violence "motivated by gender" to sue their assailants.

Only the much-publicized but little-used civil rights provision is at issue in the pending lawsuit. The plaintiff is Christy Brzonkala, who claims that she was raped by two football players (Antonio Morrison and James Crawford) in September 1994, when all three were students at Virginia Polytechnic Institute and State University (Virginia Tech). The lawsuit illustrates the difficulty of establishing with confidence either guilt or innocence in such "he-said, she-said" cases.

In campus disciplinary proceedings-initiated by Brzonkala six months after the events-Morrison said he had had consensual sex with her after she stopped by his dorm room at 2 a.m. on her way home from a drinking party. Crawford denied any sexual contact. Virginia Tech eventually cleared Crawford and disciplined Morrison mildly for verbally abusing Brzonkala (while backing away from an earlier finding of sexual assault). A state grand jury found the evidence insufficient to charge either man with any crime.

Brzonkala, meanwhile, left college and later sued the two men under VAWA for gang rape. When the defendants challenged the constitutionality of the civil rights provision, the Justice Department intervened to defend it. But both U.S. District Judge Jackson L. Kiser and the U.S. Court of Appeals for the 4th Circuit (in Richmond, Va.) struck down the provision, with Judge J. Michael Luttig writing for the 4th Circuit’s 7-4 majority.

Judge Luttig held that the civil rights provision does not fall within the Supreme Court’s long-established rule that Congress may regulate any activity that "substantially affects" interstate commerce, because the court’s 1995 decision in U.S. vs. Lopez indicated that such activities must be economic or commercial in nature (or must cross state lines). Luttig ruled that while rapes and other violent crimes against women affect interstate commerce in the aggregate, they are obviously not commercial activities.

Judge Luttig said that upholding a provision with such a thin connection to interstate commerce would amount to an abdication of meaningful judicial enforcement of the Constitution’s federalism-based limitations on congressional regulation of private activities.

(Luttig also rejected arguments that VAWA’s civil rights provision is a valid exercise of Congress’s power to enforce the 14th Amendment’s prohibition of sex discrimination by state officials, because the statute does not require plaintiffs to show any such discrimination and authorizes them to sue only private parties. The Supreme Court seems likely to agree.)

I have three problems with the argument that the civil rights provision cannot be justified as an exercise of Congress’s power to regulate commerce:

First, a flat rule barring Congress from regulating noncommercial activities-regardless of their potential impact on commerce-is not clearly required by Chief Justice William H. Rehnquist’s ambiguously worded opinion in Lopez, which struck down a statute (making it a crime to have a gun within 1,000 feet of a school) with a less plausible nexus to commerce than VAWA.

Second, such a rule might prove an unduly rigid restriction of the commerce power, which should be given a broad and flexible scope to allow Congress to deal with a wide range of potential threats to the economic well-being of the nation and its people. Such a rule would also be vaguely reminiscent of the court’s ill-fated efforts in the early 20th century to curb Congress’s power over commerce by invoking simplistic, definitional distinctions between "commerce" and "manufacture," and between "direct" and "indirect" effects on commerce.

Third, striking down VAWA’s civil rights provision would render Congress powerless to provide a federal judicial remedy to victims of gender-motivated violence, despite Congress’s findings that such violence is a barrier to the full participation of many women in the national economy and that the state justice systems often provide inadequate remedies.

To be sure, those congressional findings seem greatly exaggerated, and largely derived from what the conservative Independent Women’s Forum (in an amicus brief) calls "advocacy research" by feminist lobbyists selling the simplistic view that women as a group are pervasively oppressed by men as a group.

And to be sure, if violence against women is indeed as vast a problem as Congress found it to be, the VAWA remedy-a right for some fraction of all victims (those injured in crimes "motivated by gender") to file federal lawsuits against men who will typically have little money to pay in damages-seems glaringly inadequate.

But that does not make VAWA unconstitutional. However hyperbolic the congressional findings, the record does show that violence imposes large economic costs not only on individual women but also on interstate commerce. The record also documents continuing bias against the claims of battered women and rape victims on the part of more than a few state police, prosecutors, and judges.

Are these problems widespread enough to warrant a federal remedy? Congress thought so. And while some members of the court may doubt it (as I do), the unelected justices lack the institutional competence to second-guess that kind of broad legislative judgment.

Finally, while the remedy that Congress prescribed seems a feeble response to the problems that Congress described, this cuts both ways on the constitutional issue: The civil rights provision may do little good for victims or for interstate commerce, but it will do little harm to federalism, since it merely supplements state laws and stops short of making gender-motivated violence a federal crime.

In a democracy, unelected judges probably should not try to stop Congress from passing silly laws unless the nexus to the power over commerce is even more of a stretch than it is in this case. The time to call a halt will come if Congress launches a truly serious invasion of the domain of the states. I don’t think we’re there yet.