A Nineteenth Amendment defense of the Violence Against Women Act.

• Author: Lawsky, Sarah B.

1. INTRODUCTION

   In 1993, over half a million American women were raped.(1) A quarter of those women were raped by an intimate: a husband or ex-husband, a boyfriend or ex-boyfriend.(2) Women in America are six times more likely than men to be the victim of a violent crime committed by an intimate,(3) and women are more likely to be injured in violent incidents committed by intimates than in incidents committed by strangers.(4) Violence is the leading cause of injuries to American women ages fifteen to forty-four, more common than car accidents, muggings, and cancer deaths combined.(5) Four million American women are the victims of domestic violence each year.(6) Three-quarters of American women will be victims of violent crimes sometime during their lives.(7)

   Faced with such facts, Congress passed the Violence Against Women Act (VAWA) in 1994.(8) The many provisions of the Act were intended, as the Act's name suggests, to respond to "the escalating problem of violence against women."(9) Some of these provisions are uncontroversial; certainly, nobody would question Congress's power to provide, as the Act does, extensive federal funding to states to help states discourage violence against women.(10) Other parts of the Act have been challenged as unconstitutional but have never been struck down by any court and seem clearly to be valid exercises of congressional power. For example, courts have repeatedly upheld as a valid exercise of Congress's power under the Commerce Clause(11) those sections of the Act(12) that make it a federal crime to commit domestic violence or to violate a protective order after crossing state lines with the intention to commit such an act.(13)

   The Act also creates a federal civil rights remedy for victims of gender-motivated violence.(14) This provision's constitutionality is much less clear. Most courts that have faced the question of [sections] 13981's constitutionality have ruled that it is a valid enactment under Congress's Commerce Clause powers.(15) However, the Fourth Circuit and at least one federal district court have held that the civil rights provision of VAWA is not a valid exercise of congressional power under either the Commerce Clause or the Fourteenth Amendment.(16)

   In this Note, I argue that the civil rights provision of VAWA is a valid enactment under the Nineteenth Amendment, which granted women suffrage. Part II demonstrates that the Nineteenth Amendment is about more than voting alone; the Nineteenth Amendment also forbids the state from interfering with women's political citizenship and full political participation. Next, in Part III, I argue that a culture of violence against women interferes with women's rights to be political citizens. For a person to be a political citizen, she must be able to participate, free from domination, as a self-determined equal, in the deliberation that is essential to a republican form of government. But self-determination and equality are difficult, if not impossible, in the face of an omnipresent threat of violence. A culture of violence against women therefore interferes with women's ability to participate fully in political life. Part IV sketches out the specific requirements for congressional action under the Nineteenth Amendment--that the legislation must be remedial and that the state must play a role in the constitutional violation to be remedied--and establishes that VAWA fulfills these requirements. In particular, I argue that the state helps create a culture of violence against women because the state creates marriage, which, when viewed in historical context, is shown to be an institution that perpetuates women's subordination and violence against women. I conclude that VAWA is valid legislation under the Nineteenth Amendment.

2. THE MEANING OF THE NINETEENTH AMENDMENT

   The Nineteenth Amendment(17) means both less and more than is commonly thought. It means less in that it guarantees nobody the right to vote; instead, it ensures only that the state will not interfere with the right to vote because of a voter's gender. But it means more because it is, at its heart, about more than merely the right to vote: It is about the right to be a full political citizen. And in a country with republican roots, like ours, being a full citizen means being an uncoerced participant in the country's political deliberation.

   The Nineteenth Amendment does not confer upon women a constitutionally protected right to vote; it does, however, forbid interference with the voting right on the basis of the gender of the qualified voter. The Constitution "does not confer the right of suffrage upon any one." (18) The fight to vote is a right conferred by states;(19) it is the state that determines who will vote in federal elections.(20) States may set certain limits on the franchise. For example, a state may constitutionally prohibit a person from voting if she fails to pass a literacy test.(21) But there are constitutional limitations on a state's ability to deny the fight to vote.(22) The Constitution tells us, for example, that an otherwise qualified voter may not be turned away from the polls merely because she is black(23) or because she is nineteen years old.(24) The Nineteenth Amendment is one such limitation. While the Nineteenth Amendment does not actually confer the fight to vote on any particular woman, no woman (or man) may be denied the fight to vote simply because of her (or his) gender.

   To understand the full meaning of the Nineteenth Amendment, however, it is necessary to look beyond the plain text of the amendment to the historical and political context in which the amendment was produced.(25) This task is complicated by the fact that the vote had no single meaning to the suffragists. As Aileen Kraditor states, "The woman suffrage movement had no official ideology. Its members and leaders held every conceivable view of current events and represented every philosophical position."(26) It is safe to say, however, that one part of the suffragists' vision encompassed republican values and ideology. After a brief review of the meaning of republicanism, I look at some of the ways that republicanism manifested itself in the arguments of the woman suffrage(27) movement. I then examine republicanism as recently revived by a variety of scholars.

   Defining republicanism is no simple task. Indeed, it was John Adams's opinion that "[t]here is not a more unintelligible word in the English language than republicanism."(28) There are, however, a few themes that appear repeatedly in the literature about republicanism. According to republican views, suffrage comprised a package of political rights, including the right to serve on a jury and the right to hold office.(29) Suffrage, that is, conferred the right to full citizenship, which meant active participation in the political community.(30) This active participation was considered a good in itself.(31) Traditional republicanism also emphasized the common good over individual self-interest,(32) and held that to participate in the political community, a person must possess civic virtue--that is, the ability to work for the public good instead of merely for one's own private ends.(33) Those who did not possess civic virtue, which was the key to effective participation (and hence to effective government), could not be full political citizens.(34)

   The woman suffrage movement used each of these themes to argue for the ballot for women. For example, the suffragists were well aware of the "packaged" nature of political rights.(35) As one delegate to the 1852 Syracuse National Woman's Rights Convention, J. Elizabeth Jones, proclaimed, the right to vote "includes all other rights. I want to go into the Legislative Hall, sit on the Judicial Bench, and fill the Executive Chair."(36) Jones saw the ability to vote and the ability to hold office as linked. Similarly, in an 1867 speech at the Constitutional Convention of New York, George William Curtis responded to arguments that if women were to vote, then they would also have the right to sit on juries, hold office, and perform military service, not by denying the connection between voting and these rights and responsibilities, but rather by agreeing with each proposition and arguing that women were suited to perform each duty.(37)

   Both suffragists' and anti-suffragists' visions of woman suffrage went well beyond political rights, however. Some suffragists had an all-encompassing view of the right to vote; they saw the ballot as "the symbol and guarantee of all other rights,"(38) and "the symbol of Equality for Woman."(39) This was not an outlandish view: Soon after the Nineteenth Amendment was ratified, a conservative Supreme Court similarly suggested that the amendment could be read as ratifying true equality for women. In striking down a minimum wage law for women, the Court wrote,

   In view of the great--not to say revolutionary--changes which have taken place ... in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences [between men and women] have now come almost, if not quite, to the vanishing point.(40) More narrowly, suffragists believed the vote would allow women to participate, as full citizens, in community life. Women were of course citizens before the Nineteenth Amendment, but, as the Supreme Court had announced in 1874, women were not full, political citizens. That is, while women were "citizen[s] from ... birth, and entitled to all the privileges and immunities of citizenship,"(41) their citizenship did not include the right to vote.(42) Suffragists were determined to move beyond this second-class citizenship,(43) referring to the ballot as providing "political recognition"(44) and "political equality." (45) The political equality imagined by the suffragists involved full and equal participation in the public sphere.(46) As Jane Addams argued, the...