Commerce Clause of VAWA Constitutional, Has Precedent

To the editors:

"Save it for the States" (Ed., Jan. 21) is mistaken both in its stance against the 1994 Violence Against Women Act (VAWA) and its presentation of modern constitutional law.

The law in question, contrary to the staff's presentation, does not infringe upon the well-defined police powers reserved to the states by the 10th Amendment. What the law in question does is create a civil remedy, whereby victims of domestic violence can collect damages from their attackers.

The staff suggests that Congress is intervening "on the ground of state incompetence." Such a characterization grossly misunderstands the history of this legislation, however. Congress determined, over four years of hearings, that it had two grounds to intervene in this issue: civil rights and interstate commerce. First, Congress found that "gender bias permeates the [state] court systems," contributing to "the judicial system's failure to afford protection of the law to victims of domestic violence."

Under the enforcement clause of the history of this legislation, however. Congress determined that it had two grounds to intervene in this issue: civil rights and interstate commerce. Under the enforcement clause of the 14th Amendment, Congress correctly asserted that it had grounds to intervene on behalf of women who were being denied equal protection by the state justice systems.

Second, and more importantly, Congress' extensive hearings proved that violence against women has a "substantial adverse effect on interstate commerce," impacting interstate travel and employment, national productivity and medical costs.

Additionally, I want to take issue with the staff's presentation of jurisprudential issues. I agree with their criticism of the recent judicial activism of conservative justices, especially on issues of the ill-defined 11th Amendment guarantee of "sovereign immunity." The Fourth Circuit's own Chief Harvey Wilkinson, concurring in the case at hand, proudly declared the recent cases to be a new wave of "justified," federalism-based judicial activism.

The staff seems to me inconsistent, though, when it simultaneously endorses the "slippery slope" argument used by these justices they criticize. Allowing Congress to declare that violence against women substantially affects commerce does not mean that any tie to commerce--no matter how tenuous--allows federal regulation. Both Congress and 36 of the states have agreed that this is an issue of extreme importance worthy of a federal remedy. It seems that the only ones fighting this law are the conservative jurists trying to play a role in the "new revolution" in Constitutional law--resurrecting states' rights.

Finally, and most importantly, the staff is very misguided when it attacks the use of the commerce clause in civil rights jurisprudence. As they concede, the commerce clause is the very basis of modern civil rights litigation. What they do not see, however, is how the commerce clause has been used to protect disadvantaged groups from violations of due process and equal protection at the hands of the states.

As Congressional findings and the states confessions clearly reveal, this case fits exactly that scenario. To deny the applicability of the commerce clause to this case would be to deny the proud history of civil rights litigation over the past half century.

Conservatives and states' rights activists need not fear the VAWA; it is not an attempt to open the floodgates of federal legislation of intrastate economic activity. Rather, when viewed in its all-important context, it is simply a legitimate attempt to address an issue of interstate commerce and correct an admitted violation of equal protection across the states.

Michael P. Abate '00

Jan. 22, 2000