Yes, Virginia (Tech), our government is one of limited powers.

• Author: Dimino, Michael Richard
• Position: Power reserved to the states

1. INTRODUCTION

   The Framers of the Constitution designed the national government to be one of limited powers. Distrustful of the accumulation of power in any single body, the Framers provided for the division of powers both within the national, or general, government, and between the national government and the state governments. The separation of powers among the national government's legislative, executive, and judicial branches requires each branch to secure the acquiescence of the other two for the successful implementation of any policy, while the federalism that divides power between the national and the state governments prevents either from obtaining totalitarian control over the citizenry by limiting the authority of each to particular realms.(1) In this sense, "a double security arises to the rights of the people. The different governments will controul each other; at the same time that each will be controulled by itself."(2)

   The Constitution limits the national government by granting it certain enumerated legislative powers(3) and providing that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."(4) By giving the national government specific powers, and not a general legislative power, the Framers made clear that "an act of Congress is invalid unless it is affirmatively authorized under the Constitution."(5)

   Last Term in United States v. Morrison,(6) the United States Supreme Court reaffirmed this basic principle of American government. The Court, in a five-to-four opinion written by Chief Justice Rehnquist, held that the provision of the Violence Against Women Act ("VAWA" or "Act")(7) giving victims of gender-motivated violence a private damages remedy(8) was unconstitutional. The Court rejected arguments that VAWA was authorized under the Commerce Clause(9) or Section 5 of the Fourteenth Amendment.(10) The Court found that although violence against women affected the national economy, such violence was in no way "commercial." Penalizing those who committed violence thus lay beyond the powers of the national legislature to regulate interstate commerce.(11) The Court also rejected the claim that the Act enforced the Fourteenth Amendment, reasoning that the Amendment protects against discriminatory action only by states. The protections of the Fourteenth Amendment "erect[] no shield against merely private conduct, however discriminatory or wrongful."(12) As VAWA penalized purely private violent conduct, the Court did not give weight to claims that the states had violated women's rights by being indifferent to gender-motivated violence.(13)

   Morrison reaffirmed that legislation justified under the Commerce Clause will be sustained if the legislation regulates "the channels of interstate commerce," "the instrumentalities of interstate commerce, or persons or things in interstate commerce," or "those activities having a substantial relation to interstate commerce."(14) The Court thus declined to repudiate years of Commerce Clause jurisprudence that accepted national regulation of activities "substantially" affecting interstate commerce.(15) As Justice Thomas argued in his Lopez concurrence, this position cannot be squared with the text of the Constitution. Article I, Section 8, Clause 3 allows Congress to regulate activities that are, not those that affect, interstate commerce.(16)

   The substantial effects test, however, raises the questions of how substantial an effect on interstate commerce is required for Congress to regulate a particular activity, and which body is to determine that sufficiency. In passing VAWA, Congress collected "a mountain of data ... showing the effects of violence against women on interstate commerce."(17) Morrison held that despite a presumption in favor of the constitutionality of congressional statutes, Congress's research and conclusion that violence against women substantially affected interstate commerce were insufficient to save VAWA from a constitutional challenge. Instead, the Supreme Court itself, consistent with its duty to "say what the law is,"(18) determined that violence against women was not economic activity, and thus the "substantial effects test" did not apply to the Act.(19)

   Congress has little incentive to adopt a principled interpretation of the limits of the Commerce Clause, and there is little evidence that Congress has done so. If the Court allowed Congress to legislate with regard to every topic, the Court would effectively abdicate its responsibility to protect states from infringements on their sovereignty by the national government. Even with Morrison's pronouncement of limited government, the Court's retention of the substantial effects test (as opposed to its consideration of the original understanding of the Commerce Clause, as urged by Justice Thomas in Lopez) makes it difficult to predict whether, in the coming decades, the Commerce Clause will be interpreted as substantially limiting Congress's power.

   The Court's refusal to allow Congress to adopt an ever-expanding interpretation of the Fourteenth Amendment gives hope to the idea that the national government will be constrained to a finite realm. Nevertheless, the Court has maintained the position that Congress's power to "enforce" the Fourteenth Amendment is not limited to punishing and deterring the conduct actually prohibited by that Amendment. The extent to which the Court will defer to congressional determinations about the scope of the national government's power is thus in doubt, despite the clarity with which the Court rejected Congress's determinations in Morrison.

2. THE FACTS OF THE CASE AND ITS PROCEDURAL HISTORY

   1. Morrison's Alleged Assault of Brzonkala

      In September 1994, while Christy Brzonkala was a student at Virginia Tech, she met Antonio Morrison and James Crawford.(20) Immediately after their meeting, according to Brzonkala, Morrison and Crawford raped her.(21) Brzonkala reported that the rape caused her great emotional distress.(22) Brzonkala registered a complaint in accordance with Virginia Tech's Sexual Assault Policy. Virginia Tech conducted a hearing, at which "Morrison admitted having sexual contact with [Brzonkala] despite the fact that she had twice told him `no.'"(23) The university's Judicial Committee "found Morrison guilty of sexual assault and sentenced him to immediate suspension for two semesters."(24) On appeal, however, Virginia Tech's senior vice president and provost allowed Morrison readmittance to the university, finding the punishment "excessive."(25) Upon discovering that Morrison would return to Virginia Tech, Brzonkala "dropped out of the university."(26)

      Failing to find satisfaction within the university's disciplinary system, Brzonkala sued under 42 U.S.C. [sections] 13981.(27) The district court held for Morrison, finding that Congress lacked the authority under the Commerce Clause and Section 5 of the Fourteenth Amendment to enact Section 13981.(28) A panel of the Fourth Circuit reversed, reinstating Brzonkala's claim.(29) The Fourth Circuit, however, sitting en banc, vacated the opinion of the panel and affirmed the district court, by a vote of 7-4, in an opinion written by Judge Luttig.(30)

   2. The Supreme Court's Opinion

      1. The Majority Opinion

         Chief Justice Rehnquist began the Court's affirmance of the Fourth Circuit's opinion by describing the Violence Against Women Act. The provision of VAWA at issue in Morrison gave each victim of gender-motivated violence(31) a cause of "action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate."(32) Congress specified the constitutional authority on which it relied in enacting VAWA, invoking the power of "section 5 of the Fourteenth Amendment to the Constitution, as well as ... section 8 of Article I of the Constitution."(33) The Court then proceeded to examine whether VAWA could be sustained on either of those bases.

         1. Commerce Clause

            The Court acknowledged that acts of Congress were granted a presumption of constitutionality. Accordingly, only "a plain showing that Congress has exceeded its constitutional bounds" would justify the Court's invalidation of the Act.(34) Nevertheless, the Court would not acquiesce to a conception of the Commerce Clause that would "embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectively obliterate the distinction between what is national and what is local and create a completely centralized government."(35) In short, the Court concluded that the enumeration of congressional powers in the Constitution "cannot realistically be interpreted as granting the Federal Government an unlimited license to regulate."(36)

            In order to distinguish between national and local affairs, the Court in Lopez described three categories of activity that Congress may constitutionally regulate under the Commerce Clause. Those three categories, which the Court in Morrison reaffirmed as the extent of Congress's Commerce Clause power, are "the use of the channels of interstate commerce," "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities," and "those activities having a substantial relation to interstate commerce."(37) Because VAWA obviously did not involve a regulation of either the instrumentalities of or persons or things in interstate commerce, the remainder of the Court's discussion of the Commerce Clause concerned the application of the "substantial effects" test.(38)

            The Court reiterated the conclusion reached in Lopez that the substantial effects test has sustained regulation in the past only when "the activity in question has been some sort of economic endeavor."(39) According to the Court, VAWA...