CRIME, CONGRESS AND THE INTERSTATE COMMERCE CLAUSE.

• Author: KOPEL, DAVE

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...