Sometimes, living under a tyrannical socialist dictator for a couple of years seems like a good idea. I know that sounds absurd and exactly like Glenn Beck’s worst fear, but sometimes the type of democracy we have in our federalist system of government seems to hopelessly and ironically impede the recognition of our rights. I realize that the tyrannical, socialist style essentially failed with the end of the Cold War, and I am definitely not coming out as a die-hard supporter of the Soviet Union. But I do believe that the federal government should have the power to act for the public welfare to protect and preserve the core rights of life, liberty and the pursuit of happiness.
Take the case of United States v. Morrison. According to the stipulated facts, Virginia Tech freshman Christy Brzonkala met Antonio Morrison and James Crawford at a party, and a half an hour later they “pinned her down on a bed and took turns forcibly raping her.” After the incident, Christy became depressed, withdrew from her classes, attempted suicide and subsequently sought treatment. She filed a complaint with the school’s administration, and the school’s judicial committee found Morrison guilty of sexual assault. Morrison challenged the decision, and he was again found guilty after a second hearing. Without Christy’s knowledge, Morrison’s suspension was set aside by the administration. When she discovered her attacker would be returning to school, Christy dropped out. A state grand jury later found insufficient evidence to indict either Morrison or Crawford.
At the end of her rope, Christy sued Morrison, Crawford and Virginia Tech under the civil damages provision of the Violence Against Women Act (VAWA). The defendants moved to dismiss the suit, arguing the provision was an unconstitutional extension of Congressional authority.
After the lower courts flip-flopped on whether Congress had the constitutional authority to enact the civil damages provision, the Supreme Court struck down the federally guaranteed, private right of action for victims of gender-motivated violence. The Court found that Congress did not have authority under the Commerce Clause because “gender-motivated crimes of violence are not, in any sense of the phrase, economic activity,” and because Congress had not explicitly included a “jurisdictional hook” to establish the link to interstate commerce. This holding was in spite of four years of Congressional hearings on the effect of gender-based violence on the participation of victims in interstate commerce.
The Court also held that the provision was an unconstitutional use of Congress’s power under the 14th Amendment’s enforcement clause. Since the 14th Amendment “prohibits only state action,” the Amendment “erects no shield against merely private conduct, however discriminatory or wrongful.” That is, regardless of whether Morrison was actually guilty of raping Christy, and regardless of whether he embodies a consistent failure to punish Virginia Tech football players for gender-motivated crimes, Congress has no authority to guarantee a federal right of action for victims. Congress is bound by the straightjacket of federalism, and must rely on the fact that “no civilized system of justice could fail to provide … a remedy” for victims of gender-motivated violence.
Regardless of whether you believe Christy’s story, it remains true that victims of gender-motivated violence still suffer from a grossly inadequate access to justice. Around 18 percent of women in the United States reported being sexually assaulted in their lifetime. This makes sexual assault victims more common than smokers among women in the United States. If Congress cannot constitutionally enact a civil damages provision to counteract discrimination against victims of gender-based violence in state courts, then it seems as if federalism has stifled Congress’s attempt to act for the public welfare.
I agree that it does seem like a stretch for Congress to view individual incidents of gender-motivated violence as interstate commerce. What I cannot accept is that the 14th Amendment’s enforcement clause should only apply to state action. I find it utterly incomprehensible that a victim of rape should receive fundamentally different treatment in Fargo, Ga. than in San Francisco, Calif. If we live in a nation “with Liberty and Justice for all,” then why can that justice differ by state? Is a state’s practice in prosecuting perpetrators of gender-based violence a factor I have to consider before moving there?
So I vote for a socialist dictator. Not long enough to overthrow capitalism or nationalize all of the United States’ biggest industries. Just long enough to equalize the recognition of rights among the states. A victim of rape living in rural Mississippi should have access to the same justice as a victim of a similar crime living in New York. A student attacked by her school’s best football players should have the same ability to sue for damages as a student at a school with an insignificant athletic program.
Maybe I’m just an idealist, and maybe the socialist dictator I imagine doesn’t exist. All the same, I think federalism currently inhibits Liberty and Justice for all.
Joline Doedens is a first-year law student. Her column runs every other Monday. You can follow Joline on Twitter @jydoedens.