CRIME, CONGRESS AND THE INTERSTATE COMMERCE CLAUSE.

MAYBE IT WAS a matter of timing (former White House intern Monica Lewinsky's book was first reaching the stores), but when a Federal appeals court declared the Violence Against Women Act (VAWA) unconstitutional in March, 1999, it didn't get much attention. Yet, it may have been the most important court case that year, because it sharply limits the ability of Congress to create new types of lawsuits and criminal laws. Interestingly, quite a few groups that should have been rejoicing over the decision weren't.

In 1994, the Clinton Administration managed to persuade Democrats and Republicans afraid of backlash from the Clarence Thomas/ Anita Hill Supreme Court confirmation hearings to enact VAWA, giving women a right to sue in Federal court on matters in which they already had a right to sue in state court. For example, state rape laws provide that the rapist can be sent to prison and that the victim can sue the rapist to recover direct financial losses (e.g., medical expenses) and for pain and suffering. VAWA piled a Federal remedy on top of that.

Accordingly, when college student Christy Brzonkala got very drunk one night and, by her account, was date-raped by two other students, she got to sue in Federal, rather than state, court. Instead of merely suing her alleged rapists, she also sued the college that all three attended, Virginia Polytechnic Institute.

However, nothing in the Constitution allows Congress to force Federal courts to hear lawsuits involving a dispute between parties from the same state. (There are a few exceptions, such as when a local government official attempts to interfere with a person's exercise of Federal civil rights.)

Congress does, of course, have the constitutional power "to regulate commerce ... among the several states." So, Congress claimed that VAWA was a legitimate exercise of the power to regulate interstate commerce. It is quite a stretch, though, to claim that the power to regulate the buying and selling of products across state lines includes the power to regulate drunken sex acts of college students. Brzonkala was not, after all, complaining that she had been hauled to West Virginia by her alleged assailants, nor were they acting for commercial motives.

Accordingly, the Fourth U.S. Circuit Court of Appeals ruled in the case of Brzonkala v. Virginia Polytechnic Institute that the power to regulate interstate commerce did not include the power to create VAWA. "We the People," the court's majority opinion began, "distrustful of power, and believing that government limited and dispersed protects freedom best, provided that our federal government would be one of enumerated powers, and that all power unenumerated would be reserved to the several States and to ourselves." Even if

a crime is motivated by "gender animus" (instead of the animus against the entire human race, which motivates most criminals), the criminal's intent doesn't turn the crime into an act of interstate commerce.

Moreover, even though all crime has some economic effects, the impact of crimes like drunken sex on interstate commerce is insignificant. Brzonkala's lawyers argued that fear of gender animus has an effect on interstate commerce by making women less willing to engage in various activities, thus damaging the national economy. The court didn't buy this argument. As it explained, to uphold VAWA on the basis of the assertion that crime indirectly affects interstate commerce would be to give Congress blanket authority to legislate on every conceivable subject, since everything has some incidental economic effect. To allow Congress to legislate on everything, the court observed, would be to destroy the U.S.'s constitutional system, which gives Congress power in just certain areas (such as patents, declarations of war, taxes, and interstate commerce).

Under the Constitution, all the other topics (like disputes between college students) are to be handled by the states, not the Federal government. To anyone reading the Constitution, this makes sense. Article I, Section 8, which outlines most of the powers of the Federal government, goes into considerable detail about specific powers--for example, to establish post offices and post roads, provide for bankruptcy laws, or coin money--that could have been left out if the Framers meant to create a government of general powers.

For that matter, Article I, which describes Congress' powers, makes it clear that it just has enumerated powers, because Article I indicates that "all legislative powers herein granted" (emphasis added) shall be vested in Congress. Not "all legislative powers that anyone can imagine," or "all legislative powers that seem like a good idea," but merely those "herein granted." The specific powers that the people gave to Congress through the Constitution are the only ones Congress has.

Even the Federalist Papers, which are, after all, a defense of increased Federal power, make it clear that criminal law enforcement would not come within the Federal sphere under the new Constitution. James Madison wrote that Federal powers "will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.... The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state."

Likewise, Alexander Hamilton, the most determined nationalist of his era, explained that state governments, not the Federal government, would have the power of law enforcement and that that power would play a major role in ensuring that the states were not overwhelmed by the Federal government: "There is one transcendent advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light--I mean the ordinary administration of criminal and civil justice."

The Brzonkala court understood all this. To allow Congress to regulate crimes of violence merely because they are motivated by gender animus would, it said, stretch the notion of limited government past the breaking point. For, if gender animus can be regulated as interstate commerce, then so can anything. The Center for Individual Rights, in filing an amicus brief in the case, pointed out research showing that insomnia indirectly affects interstate commerce, because sleep-deprived employees reduce national economic productivity by billions of dollars. Thus, if VAWA is constitutional, it would be constitutional for Congress to pass a law requiring everyone to go to bed at 10 p.m., after drinking a glass of warm milk.

Feminist organizations were quick to denounce the Brzonkala result, but they would be wise to reconsider. If Congress can't pass laws about college sex under its interstate commerce power, then it can't pass laws to restrict abortion by claiming that abortion "affects" interstate commerce. Medical procedures (such as partial-birth abortion) performed within a single state are not interstate commerce and have just an indirect effect on interstate commerce. Thus, the same logic that struck down the Violence Against Women Act in 1999 may well serve to strike down Federal anti-abortion statutes in the future.

Nor are abortion-rights groups the only one who ought to be pleased. Civil libertarians and gay rights groups, among others, ought to be happy with the Brzonkala opinion. Congress is always looking for new things to regulate in order to make interest groups happy. Laws criminalizing conduct are especially appealing to Congress because they don't require an immediate appropriation of funds. As the nation shifts gradually right-ward, it seems likely that Congress will look more and more at symbolic criminal laws that civil liberties groups dislike. In the wake of the shootings in Columbine High School, for example, Congress has voted on bills to post the Ten Commandments in public schools, impose long mandatory prison terms on parents who take their children target shooting without first writing themselves a permission slip, force random drag tests on high school students, and impose Federal prison terms on juvenile criminals--even though not a single one of these subjects involve interstate commerce, or any other constitutional power of Congress.

The large bulk of current Federal law enforcement is not aimed at stopping the crimes against persons and property that concern most Americans. Instead, Federal enforcement involves primarily statutory offenses: controlled substances, firearms, gambling, etc. In many cases, the Federal laws regarding victimless crimes are much more severe than state laws, as if the people of the 50 states were of such poor moral fiber that they are not "tough enough" on marijuana cultivation or possession of unregistered firearms.

Centralizing power

One key reason for growth of Federal criminal powers beyond constitutional boundaries has been the gullibility of the media and the public in regard to various frauds and panics fomented by persons with an interest in centralizing more power in Washington. During the 1930s, J. Edgar Hoover, director of the Federal Bureau of Investigation, falsely told the American people that an unprecedented wave of child kidnappings was in progress, and the FBI was rewarded with substantial attention and funding. In the 1980s, a very different FBI earned itself more funding by putting out phony claims about a wave of serial killers of children.

In 1996, an organization called the Center for Democratic Renewal (CDR) began making claims about an alleged wave of white supremacist arson attacks on black churches in the South. In fact, some of the "arsons" never took place; other "arsons" were accidental fires; and many white churches in the South have also been burned. Of the more than 90 fires at black churches, three were set by racists. Nevertheless, the CDR's exaggerations fit the media's preconceptions about white racism, so the "fact" of widespread racist church arsons became the pretext for yet more Federal criminal power. The Federal law against arson (vigorously prosecuted in every state under state law) was expanded even more.

If not held to enumerated powers, Congress can enact any law a publicity-seeking member can imagine. A Congress of unlimited powers faces only the barrier of the Bill of Rights--which, as the nation's experience with the war on drags illustrates, is often inadequate protection.

In the absence of the doctrine of enumerated powers as a restraint on Federal power, the sole protection remaining for the liberties of citizens who are not sheltered by powerful lobbying groups is that provided by the positive limitations on government embodied in the Bill of Rights. Those provisions were inserted by pessimists who were deeply afraid--rightly, as it turns out--that the doctrine of enumerated powers would not be enough to restrain the Federal government over the long term. There is no reason to believe, however, that the Bill of Rights itself will survive over the long term if the rest of the plan is abandoned. As NASA engineers say, once you start relying on the backup systems, you are already in trouble.

For example, the pressure to ignore enumerated rights brought about by increased Federal responsibilities can already be seen in Pres. Clinton's program of "sweeps" (home invasions and searches by police officers) of the apartments of people who live in Federally funded public housing projects, actions that surely violate Fourth Amendment rights.

What rights will be next? A Federal government with unlimited responsibilities is likely to demand unlimited power to discharge them and is unlikely to be restrained for long by the Bill of Rights. The Framers anticipated that. Americans should remember it.

Civil libertarians aside, political reformers also ought to applaud the Brzonkala decision. The effort to diminish the role that money plays in the political world has so far been confined to treating symptoms--large amounts of campaign cash and special-interest influence. Those are just symptoms, though, of the underlying problem: the Federal government does too much, inspiring too many interest groups to seek to influence policy. Wherever you spread enough honey, flies will surely congregate, whatever other measures you might take to keep them under control.

So long as Congress can legislate on any topic it wants, special interests will find a way to buy influence with Congress. However, a Congress that does only what the Constitution allows it to do will have much less power to help special interests. That, of course, is exactly what the Framers had in mind when they set up a Federal government of limited and enumerated powers in the first place.

Dave Kopel is an associate policy analyst, Cato Institute, Washington, D.C. Glenn Reynolds is professor of law, University of Tennessee, Knoxville.