A general theory of governance: due process and lawmaking power.

Author:Weinberg, Louise
Position:IV. Article I and the Limits of Enumeration C. The Virginia Tech Rape Case through VII. Envoi, with footnotes, p. 1087-1121
  1. The Virginia Tech Rape Case

    The Lopez tests of national power can also fail to capture the national interest in dealing with a widespread failure of state justice. To take a somewhat analogous example, in enacting the Civil Rights Act of 1871 (120) under its Fourteenth Amendment power, (121) Congress was attempting to deal with the terrorist tactics of the Ku Klux Klan, including the effects of Klan terrorism on courts throughout the defeated South. (122) In the debate preceding the enactment of the Civil Rights Act, one congressman described the situation:

    Sheriffs, having eyes to see, see not; judges, having ears to hear, hear not; witnesses conceal the truth or falsify it; grand and petit juries act as if they might be accomplices.... [A]ll the apparatus and machinery of civil government, all the processes of justice, skulk away as if government and justice were crimes and feared detection. Among the most dangerous things an injured party can do is to appeal to justice. (123) Here one can see a collapse of justice in states throughout the South, generating a national remedial interest, and can see how that interest empowered Congress to enact the Civil Rights Act.

    A later narrowing construction of the Fourteenth Amendment (124) has meant that the battery of civil rights laws enacted during the Johnson administration in the 1960s had to be sustained under Congress's commerce power instead. (125) Yet surely a widespread failure of the states at the time to secure the civil rights of all persons within their borders was part of the justification for the national civil rights legislation of the 1960s, and a more plausible basis for the legislation than any consumption of sister-state produce, (126) just as it was a widespread failure of state justice that empowered Congress to enact the Civil Rights Act of 1871.

    This brings us to United States v. Morrison. (127) There, the Court struck down a part of the Violence Against Women Act affording battered women a private right to sue the batterer. (128) The Court concluded that this private right of action was beyond the power of Congress under either the Commerce Clause (129) or the Fourteenth Amendment. (130)

    Writing for the Court, Chief Justice Rehnquist had to acknowledge that Congress made substantial findings in support of the legislation. (131) But Congress emphasized, and Rehnquist chose to focus on, findings on the impact of violence against women on the victims and their families. (132) There was also much in the findings about the impact of domestic violence on welfare, as well as work. (133) But these emphases of Congress and amici were an artifact of Lopez's insistence that "activities affecting" interstate commerce be "economic. (134) There was less in the findings tending to show the unwillingness or inability or simple failure of state and local authorities to protect women from domestic or other violence or to furnish redress for it.

    The record in Morrison is ambiguous. It can as easily be read as suggesting that the plaintiff was lying about being raped as it can be read as illustrating the problem of denials of justice in such cases. The defendant University had waffled in remediation of the plaintiffs complaint, in the end standing behind its football heroes; and a Virginia grand jury had refused to indict them. (135) Even supposing, however, that in some fraction of cases brought under the Act the plaintiffs will be lying, all that Congress had attempted to give a woman here was a chance to try to prove her case.

    Chief Justice Rehnquist acknowledged that Congress had made some findings documenting state and local failures to remedy violence against women, going so far as to say that these findings, too, were "voluminous." (136) But the Chief Justice pointed out that "the Fourteenth Amendment place[s] certain limitations on the manner in which Congress may attack discriminatory conduct.... Foremost among these limitations is the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action.... That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." (137) By ringing in this unexceptionable admonition, Rehnquist manipulatively shifted the referent of the words "conduct" and "discriminatory" and "wrongful," transmuting what was essentially an allegation of official wrong into an allegation of rape. Whatever the intent of Congress underlying other provisions of the statute, (138) these unemphasized congressional findings bore obvious relevance to Congress's provision in the legislation of the challenged private right of action. Had these findings been given full value, the nation might not have lost the private cause of action in the Violence Against Women Act. (139) And the Court would not have been able to suppose as blithely as it had that Congress was addressing the local crime of rape rather than a nationwide failure of justice.


  2. The Nigerian Torture Case

    In an earlier article I dealt with the advantages that due process reasoning could provide in cases raising questions of federal jurisdiction under Article III. (140) I will not revisit the cases discussed there. But I should point out that the question of jurisdiction and its relation to the national interest has moved to the forefront in the waning days of the 2011-2012 Term with Kiobel v. Royal Dutch Petroleum Co. (141)

    Kiobel began as a federal action by an alien for a tort in violation of the law of nations, fitting the odd requirements of an ancient grant of federal jurisdiction, the Alien Tort Statute. (142) Kiobel also more or less matches the peculiar facts of Filartiga v. Pena-Irala, (143) the famous Second Circuit case taking jurisdiction under the Alien Tort Statute of a case on wholly foreign facts, to found a modern jurisprudence of universal jurisdiction and human rights.

    The original question before the Supreme Court in Kiobel was whether there could be corporate liability for aiding and abetting official torture of Nigerian citizens in Nigeria. The claim invoked the federal common-law action implied by Filartiga and its progeny under the Alien Tort Statute.

    The foreign corporate defendants in Kiobel did not trouble to argue a jurisdictional question when the case was first argued before the Supreme Court. The defendants may have considered any jurisdictional question in the case settled, or may have preferred on this occasion to settle the issue of corporate liability vel non. Nor did the defendants raise the considerable difficulties now attending implied actions against aiders and abettors. (144) But at the time I thought the more interesting question had to do with the rational limits of judicial power. (145)

    The difficulty in Kiobel, as in Filartiga, was that nothing in the case seemed to have any connection with the United States. If that were so, under both Home Insurance Co. v. Dick and Erie v. Tompkins, the United States could not apply its law in such a case. And therefore, under Article III, there was no federal question under which the case could arise and the jurisdiction appeared to be unconstitutional. Even Judge Kaufman, writing for the Filartiga panel, and, in effect, authorizing a federal common-law cause of action for torture committed by an alien, (146) understood the jurisdictional difficulty in a wholly foreign case for a tort in violation of international law. (147) What saved the jurisdiction in Filartiga was Judge Kaufman's apparent reliance on universal jurisdiction, with a suggested basis in an underlying reciprocal interest shared among all nations. Judge Kaufman argued, memorably, that "the torturer has become--like the pirate and slave trader before him--hostis humani generis, an enemy of all mankind." (148) The torturer could and should be amenable to civil suit wherever found.

    Kiobel in fact is a stronger case for adjudication here than was Filartiga, because the Nigerian plaintiffs gained asylum in this country and now reside here; (149) and the named defendant companies are present and doing business in this country. Personal jurisdiction over them was not transitory. The joint residence of the parties will have at least an adjudicatory interest in resolving their dispute. (150)

    Nevertheless in the original oral argument in the Supreme Court, Justice Alito raised the question whether the United States had any interest at all in the case. (151) The case was put over for reargument in order to deal with this question. (152)

    Notwithstanding Kiobel's supposed want of connection with the United States, the constitutionality of the district court's jurisdiction under the Alien Tort Statute, as applied in Kiobel, must have seemed to the Court, as to the corporate defendants below, too easily answered. Formalistically speaking, there is no Article III problem in Kiobel. The jurisdiction of the federal courts in both Kiobel and Filartiga arises under federal common law for purposes of Article III. (153) The statute vesting the jurisdiction in both cases, the ancient Alien Tort Statute, (154) explicitly contemplates an action for a tort in violation of the law of nations, in either set of courts, and in our courts the law of nations is administered as federal common law. (155)

    The Court has never approved general federal-question jurisdiction over a case pleadable under the Alien Tort Statute. Filartiga should be adjudicable as a case arising under federal law within the meaning of the general federal-question jurisdictional statute, (156) as Judge Kaufman saw, (157) and indeed in all courts of general jurisdiction. The statutory federal-question jurisdiction was pleaded in the similar case of Mohamad v. Palestinian Authority, (158) a fact that went unremarked in the Supreme Court. True, the cause of action in Palestinian Authority was statutory, under the Torture Victim Protection Act. (159) That statute is...

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