No. 2	May 22, 2000

Federalism and Morrison

by Michael Greve

Last week, in a decision that marks a milestone in the revival of constitutional federalism, the United States Supreme Court struck down the civil remedies provision of the 1994 Violence Against Women Act. That provision created a federal damages remedy for the victims of "violence motivated by gender"—that is, violence committed "because of gender" and due to an "animus based on the victim’s gender."

United States v. Morrison removes any lingering doubt that the five-member, pro-federalist majority (Chief Justice Rehnquist, Justices Kennedy, O’Connor, Scalia, and Thomas) has found both the will and the political maneuvering room to re-impose meaningful constitutional constraints on the Congress. Whether the Justices will have an opportunity to pursue that project in future years will be decided on election day in November.

The case arose over decidedly non-federalist allegations. Christy Brzonkala, a former student at Virginia Tech, alleged that she had been gang raped in September 1994 by two male student athletes at the University. In 1995, Brzonkala brought suit in federal court under VAWA’s civil remedies provision. (She also pursued, but later dropped, more traditional legal claims under Virginia state law.) A federal district court in Virginia and the federal appeals court for the Fourth Circuit dismissed Brzonkala’s case on the grounds that Congress had exceeded its constitutional authority. The Supreme Court has now affirmed these decisions, holding that neither the Commerce Clause nor the Fourteenth Amendment provides Congress with the power to enact the civil remedies provision.

Restoring constitutional federalism has been the Rehnquist Court’s most prominent, ambitious, and salutary project. The federalist Justices have made sufficient progress and have gained sufficient confidence to treat Morrison as an easy case. The remarkably brief majority opinion is written in the dismissive "case closed" style Chief Justice Rehnquist often deploys in signaling that an issue has been settled. It largely ignores the dissents (by Justices Souter and Breyer) and, in doing so, skirts legal nuances which invite further and unwanted debate.

Citing cases from the 1880s as binding, unquestionable authority, the Morrison majority opinion declares unequivocally that the Fourteenth Amendment extends only to discrimination by state actors and does not permit Congress to regulate private conduct, such as "discriminatory" gender-based violence. En route to this holding, the Morrison opinion discards recent cases that cast doubt on the validity of the ancient public-private distinction.

The majority’s Commerce Clause analysis occupies a mere eleven pages. Half of those pages summarize the Court’s 1995 decision in United States v. Lopez, which held that the federal Gun Free School Zones Act, a criminal law against the possession of guns in and around school grounds, exceeds Congress’s commerce power. Morrison applies Lopez in holding that the Commerce Clause does not extend to non-economic activities that lack a direct and substantial effect on interstate commerce.

Lopez was a constitutional trial balloon. It was the first Supreme Court case since 1937 to declare a federal law beyond Congress’s commerce power, and many scholars and appellate court judges doubted that the decision actually meant what it said. (In the vast majority of appellate cases decided after Lopez, circuit courts upheld broad congressional action based on Commerce Clause authority.) Morrison dispels these doubts and, in particular, the notion that Lopez turned on a lack of congressional "findings" on the connection between the regulated activity and its effects on interstate commerce. The enactment of the Violence Against Women Act was preceded by four years’ worth of purported "findings" on the effects of violence on female participation in the labor force, health care expenditures, and other aspects of the national economy. The Morrison majority, however, pays little heed to those legislative factoids or to their partial regurgitation in Justice Souter’s dissent. Legislative "findings" of a substantial effect on interstate commerce—alone--will not insulate federal statutes from independent judicial scrutiny.

Justice Breyer’s dissent argues, and the majority concedes, that it isn’t easy to tell "economic" activities from non-economic ones, or "substantial effects" on interstate commerce from trivial effects. For this reason, Justice Clarence Thomas urges, in concurrence (as he had done at much greater length in his earlier Lopez concurrence) that the Court should do away with the "rootless and malleable" effects test and return to the original understanding of the Commerce Clause, one which allows Congress to regulate only activities that actually are interstate commerce. But while Justice Thomas is right to remind his colleagues of the constitutional terrain they have yet to traverse, an immediate judicial repeal of the New Deal—the plain implication of his position—is politically impossible. A judicial federalism revival requires plausible doctrines that pack some constitutional punch and facilitate a piecemeal approximation of true constitutionalism.

On this score, the Rehnquist Court is doing just fine. Though less elegant and compelling than Justice Thomas’ constitutional originalism, the Morrison rules and distinctions are sufficiently clear and plausible to be defended comfortably and with a straight face. (Michael Rosman of the Center for Individual Rights, who represented the winning side in Morrison, ably did so in his oral argument before the Court.) The standards have teeth: although Justice Breyer’s Morrison dissent suggests that Congress can readily circumvent the majority decision, his real concern is that Congress will not be able to do so. The Supreme Court majority, for its part, will be able to extend the Morrison holding by selecting the most plausible of a large number of cases that will soon materialize for review—just as it plucked Morrison as the first and most logical Commerce Clause case after Lopez.

Morrison indicates that the Court will enjoy considerable political leeway in picking its targets. The case is noteworthy not only for its holding but also--perhaps more importantly--because it marks the first time that the modern Supreme Court has asserted constitutional norms against a noisy and supposedly powerful political constituency. That venture carried a fair risk of a political backlash. Feminist advocates had cast Christy Brzonkala into the role of a poster child and declared the Morrison litigation the vital test case in "women’s civil war." Hordes of renowned law professors testified and editorialized on VAWA’s central role in the fight against societal discrimination. Catharine MacKinnon proclaimed that an adverse result would be "a staggering setback for human rights and an affirmation of the systemic nature of male dominance." NOW and its journalist cheerleaders openly speculated that Justice Sandra Day O’Connor would, surely, set aside her federalist convictions and vote "for women."

Now that the result is in, though, feminists are managing only the most perfunctory response to Morrison. Yes, NOW activists will hold a protest rally at the Supreme Court—but then, when don’t they? President Clinton has promised to "study" constitutional means of providing redress for the victims of gender-based violence. The "deeply disappointed" Vice President has declared Morrison "a setback for these women who each day strive to heal and repair the broken pieces in their lives caused by domestic violence." (Mr. Gore should perhaps consult his boss concerning the healing and repairing quality of federal lawsuits. He should also consult Senator Biden—VAWA’s creator--who has consistently maintained that the civil remedies provision exempts domestic violence from its coverage.) The New York Times has obliged with the inevitable editorial about "Violence to the Constitution," and Jeffrey Rosen and Lawrence Tribe will likely revive their periodic predictions of an impending return to an "ante-bellum jurisprudence" or perhaps the Articles of Confederation. None of this, however, is the stuff of a real political backlash against the Supreme Court’s federalism. It is time, apparently, to move on.

A similar ho-hum response would likely greet federalism rulings on many of the meddlesome, demagogic laws and regulations pouring forth from Washington, D.C. While the virtual constituencies that demand those enactments talk a good game, their causes have little resonance outside the echo chambers of the national media and Harvard Law School. Suppose the Court found some environmental provision unconstitutional—holding, for example, that a "wetlands" puddle in the Utah desert is actually not a "navigable water of the United States" or the lone endangered shrimp in that puddle is not an article in, or instrument of, "interstate commerce." Beyond staging another rock concert on the Mall, what would environmentalists actually do? Whom besides Al Gore could they mobilize for a campaign to re-assert (under some quasi-constitutional pretense) federal control over the minutiae of local land use?

The muted response to Morrison portends that the case may be only the first on many federalism decisions that will puncture the Beltway denizens’ hot air balloons—unless, that is, a future President Gore gets to replace a member of the Supreme Court’s federalist majority. In that event, the nationalists on the Bench will have found a fifth vote to make good on their promise, re-stated for the umpteenth time in Justice Souter’s Morrison dissent, to overrule every federalism precedent of the past five years.

Come November, then, the voters will have a rather direct and decisive say on federalism’s future. Mr. Gore’s shock troops have learned, if they didn’t already know, that they are the principal victims of the Supreme Court’s new-found enthusiasm for constitutional norms, and they have vowed to make Morrison and the Court an issue. It wouldn’t hurt if their opponents found their voice in defense of the Supreme Court’s federalism, and ours.