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Crime and Commerce

Mises Daily: Monday, May 22, 2000 by

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On Tuesday, the legal scholars on the New York Times editorial board accused the Supreme Court of doing "violence against the constitution" by failing to define rape as "commerce" subject to regulation under the interstate commerce clause.

Since four dissenting justices agreed with them, we are left with the question: what scares you more: madness infecting the nation's leading newspaper or madness striking four justices appointed by three presidents, including two Republicans?

In 1994, Christy Brzonkala, a student at Virginia Polytechnic Institute (Virginia Tech). Brzonkala met Antonio Morrison and James Crawford, who were both students at Virginia Tech and members of its varsity football team. Brzonkala alleges that, within 30 minutes of meeting Morrison and Crawford, they assaulted and repeatedly raped her.

After the attack, Morrison allegedly told Brzonkala, "You better not have any ... diseases." Brzonkala alleges that the rape left her severely depressed. She dropped out of school. Later, she filed a complaint against the football players with the school. Crawford was exonerated and Morrison was suspended for two semesters. Morrison appealed within the school bureaucracy and his suspension was ruled "excessive." When Brzonkala heard this news, she freaked out and once again dropped out of school.

In 1995, Brzonkala sued Morrison, Crawford, and Virginia Tech in the United States District Court. She sought relief pursuant to 42 U.S.C. º 13981 which allows those victimized by "gender-related" violence to sue in federal court. This law was allegedly based on the power of Congress under Article I, º8 "[t]o regulate Commerce...among the several States..." The District Court wisely threw the case out because the statute proscribed behavior unrelated to interstate commerce. In a split decision, the Court of Appeals affirmed the District Court's decision and the case went to the Supreme Court.

Section 13981 was part of the Violence Against Women Act of 1994, passed by a still-Democratic Congress and signed by a pre-triangulating Clinton. Skipping the legalese, the statute basically allows women who are raped to sue for damages in federal court. They can already sue in state court for such damages or they can file a criminal complaint in state court. Just as the mail fraud statute federalized criminal law, the Violence Against Women Act seeks to federalize the common law of torts which was traditionally a state function. In a majority opinion written by Justice Renquist, the Supreme Court struck down the law last week: United States v. Morrison.

Renquist is no libertarian, but he does occasionally correctly construe the constitution. A broken clock is right twice a day. Renquist conceded that the commerce clause, as construed by the New Dealites, allows regulation of economic activities which, in the aggregate, have a substantial effect on interstate commerce, but he held that violent crime is not economic activity.

Justice Souter dissented and was joined by the three other "liberals" on the court: Stevens, Ginsburg, and Breyer. Souter is the latest example of a long line of alleged conservatives jurists who "turned liberal" after moving from America to inside the Beltway. My pop-psychological explanation for this is that judges, like most people, want to be liked by the people who surround them. Most of the people in Washington, D. C. favor Big Government. Thus, Supreme Court Justices, over time, usually grow more and more fond of Big Government.

Souter supports the unreconstructed, constitution-be-damned, post-New Deal commerce clause mentality according to which the federal government can even prohibit a farmer from growing wheat for personal consumption: Wickard v. Filburn, 317 U.S. 111, (1942).

In that case the right to regulate interstate commerce metamorphosed into the right to ban intrastate non-commerce and to starve farmers. They say the Nazis liked the forced sterilization case of Buck v. Bell, 274 U.S. 200 (1927), wherein that gentle soul, Oliver Wendell Holmes said, "Three generations of imbeciles are enough."

Well, Joseph Stalin would have enjoyed reading Wickard v. Filburn. Souter, who quotes the authoritarian Holmes twice, makes this bizarre case the centerpiece of his argument that the commerce clause extends to "all activity that, when aggregated, has a substantial effect on interstate commerce." That test, of course, means that Congress could regulate "all activity," period.

To make matters worse, Souter would leave it to Congress to decide whether aggregated activities so affected interstate commerce. Souter says the courts should review such legislation not for "soundness" but merely for "rationality", whatever that means. Souter's opinion should be reviewed for evidence of either.

Souter cites Federalist No. 46 for the proposition that "national politics" was intended by the Founders as the primary means of protecting states' rights. This is a peculiar authority for a liberal to cite since at the very end of the essay, James Madison recommends, as the ultimate response to illicit federal encroachment, not politics, but armed resistance to federal tyranny by--

a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by [state] governments possessing their affections and confidence. . . . Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.

Souter did not join Clarence Thomas' 1997 opinion referring to the right to bear arms as the "palladium of the liberties of the republic." (See, Printz v. United States, 521 U.S. 98 (1997). Thus, in Souter's recent opinion we have one of the most bizarre lines of thought ever issued by a Supreme Court justice:

First Premise: The courts need not limit the federal government to its enumerated powers in the constitution because, if it ever usurps those powers, the people, exercising their Second Amendment right to bear arms and form militias, can go to war against the federal government and defeat it militarily. ("Million" "Mom" "Marchers"-don't get upset-read the second premise.)

Second Premise: But, of course, as the federal courts have assured us many times, the Second Amendment does not give citizens the right to bear arms. (Whew!)

Unstated Conclusion: The federal government can do whatever the hell it wants to do. (Happy, Rosie O'Donnell?)

Souter notes the "irony" that, while the Court's majority purports to protect state prerogatives in the field of tort law, thirty-eight states filed briefs in support of the Violence Against Women Act. So what's the irony? Who is surprised that state officials are statists? Most of them want to be federal officials someday. Am I right, Bill, "W", and Rudy? Here again, Souter gives us reason to think he did not read all of Federalist No. 46.

In it, Madison evidences his Jeffersonian patrimony:

The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other.

A proper and limited interpretation of the commerce clause will protect the liberty of the people of the states from oppressive federal interference with their lives, whether state politicians like it or not. Unfortunately today, there is only one vaguely Jeffersonian voice on the court. The longer most politicians and judges stay in Washington, and expose themselves to its culture of state worship, the more statist they get.

The reclusive Clarence Thomas is an exception. At least on issues of federalism, regulation and the right to bear arms, he is the judge on the court most willing to actually say what the authors of the constitution meant when they wrote it. In his one paragraph concurrence, he makes more sense than Renquist and Souter do in their long and tortured dissertations:

I write separately only to express my view that the very notion of a "substantial effects" test under the Commerce Clause is inconsistent with the original understanding of Congress' powers and with this Court's early Commerce Clause cases. By continuing to apply this rootless and malleable standard, however circumscribed, the Court has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits. Until this Court replaces its existing Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress appropriating state police powers under the guise of regulating commerce.

May all future Supreme Court justices follow Thomas' example and eschew the Washington, D. C. cocktail and dinner party circuit.

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James Ostrowski, a contributor to Secession, State, and Liberty, practices law in Buffalo, New York. Send him MAIL.