NCPA - National Center for Policy Analysis

Supreme Court Promotes Federalism

March 29, 1999

Legal scholars are concluding that a revival of federalism is the most striking feature of the Rehnquist court -- and a development that is spreading to lower courts.

In a series of decisions, the court has reaffirmed the power of the states and denied jurisdiction in important areas to the federal government. It has held that the Commerce Clause does not justify regulation of possession of guns in schools, that the federal government cannot commandeer state governments to enforce federal regulations, and that the federal government cannot restrict state and local government action in the name of enforcing individual constitutional rights beyond those recognized by the court.

Experts say that in a highly significant ruling, the Fourth Circuit Court of Appeals in Richmond, Va., has struck down the Violence Against Women Act -- holding that the act exceeds Congress's constitutional authority under the Commerce Clause and the 14th Amendment.

  • The statute created new federal crimes for violent acts "motivated by gender" and for "interstate domestic violence."
  • In Brzonkala vs. Virginia Polytechnic Institute -- involving the alleged rape of a female student by two football players -- the Clinton administration tried to defend the statute by arguing that Congress had the power to regulate commerce among the states.
  • But the court could not find any justifiable link between a rape and interstate commerce.
  • As to government arguments that Congress's power rested on the 14th Amendment -- which prohibits any "state" from denying to any person the equal protection of the laws -- it was obvious that the football players were not a "state" and that purely private conduct by private persons does not violate the 14th Amendment.

Since the states already have sufficient legal tools to prosecute rape cases -- and even hand down harsher penalties than federal courts, on average, in rape cases -- the question becomes why such a statute would ever be enacted in the first place. Many observers conclude that Congress primarily wanted to be seen as doing something on "women's issues."

Source: Michael W. McConnell (University of Utah College of Law), "Let the States Do It, Not Washington," Wall Street Journal, March 29, 1999.


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