High court has another chance to whittle down federal power

By Vin Suprynowicz
web posted May 1999

In the famous (but still too lonely) Lopez case, the Supreme Court voted 5-4 in 1995 to strike down the Gun-Free School Zones Act of 1990, ruling that banning guns from neighborhoods surrounding public schools is not within the powers delegated to the federal Congress under its constitutional mandate to "regulate commerce ... among the several states."

Congressmen had extemporized that the founders meant to give them power to regulate the places where firearms might be carried, since parts of many firearms are manufactured in certain states, and then assembled or sold in other states. The high court laughed this out of the room, thank goodness. Local public schools are notinvolved in the business of imposing tariffs or duties on interstate freight -- if such a law could be justified as affecting "interstate trade," there would be nothing left which could not be so justified.

Now, in a 7-4 ruling handed down March 9, the U.S. Court of Appeals for the 4th Circuit has gone further down this same path, throwing out provisions of the federal Violence Against Women Act of 1994.

While the appeals court doubtless has sympathy for rape victims -- the case in question involves a freshman at Virginia Polytechnic Institute, raped by a member of the football team who received little more than a slap on the wrist -- a clear majority nonetheless held such offenses are matters for the jurisprudence of the several states, dismissing as absurd another congressional rationale under the commerce clause, this one holding that violence against women is a federal matter since it ''deters potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business in interstate commerce ... by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.''

Concurring with the majority, Circuit Court Judge J. Harvie Wilkinson III dismissed such tortuous nonsense: ''The Commerce Clause,'' he said, ''must contain some limitations if its language is not to be completely excised from the Constitution.'' If the courts fail to re-instate such limits, the states will become ''mere marionettes of the central government,'' Judge Wilkinson warned.

Of course rape is a terrible crime and should be harshly punished when the facts are clear -- but by state authorities, not distant bureaucrats in Washington. So has the court now held, and so far so good.

Now, in a new case out of Maine in which arguments were heard March 31, the U.S. Supreme Court has yet another opportunity to rein in the power of the federal government and increase the autonomy of the states, this time perhaps even restoring some measure of their intended effectiveness to the Ninth and Tenth Amendments.

The high court -- of which a slim 5-4 majority has repeatedly held out for restoring more state sovereignty in recent years -- is expected to rule by June on whether state governments can be sued in state courts by employees seeking to enforce federal labor law.

A group of probation officers sued Maine in federal court in 1992, saying they were unfairly being denied the time-and-a-half overtime pay guaranteed by the federal Fair Labor Standards Act.

While their initial lawsuit was pending, the Supreme Court ruled in 1996 that the Constitution's 11th Amendment shields states from being sued against their will in federal court. So the probation officers refiled their lawsuit in state court, still depending on the federal law.

Maine's courts, however, ruled that the 11th Amendment makes states immune from state court lawsuits that would be barred in federal courts, though federal labor officials may still sue the state in attempts to enforce such federal edicts.

The probation officers' Supreme Court appeal has brought quite a collection of supporters out of the woodwork, from the National Association of Police Organizations to a coalition of publishers worried about their right to sue states over alleged copyright infringement.

But no matter whose oxen are gored, the fact remains that under America's original bargain, we are guaranteed a central government of limited powers, sharply delineated, while most rights and prerogatives remain in the hands of the people or the (now 50) sovereign states, each guaranteed its own, separate, republican form of government.

After 66 (or is it 86?) years of usurpations by the grifters and permanent perfumed potentates of Washington, we are still a long way from restoring that ideal. But at least the courts appear to be finally headed -- however haltingly -- back in the right direction.

Vin Suprynowicz is the assistant editorial page editor of the Las Vegas Review-Journal. His new book, "Send in the Waco Killers: Essays on the Freedom Movement, 1993-1998," is available at $21.95 plus $3 shipping ($6 UPS; $2 shipping each additional copy) through Mountain Media, P.O. Box 4422, Las Vegas, Nev. 89127-4422. The 500-page trade paperback may also be ordered via web site http://www.thespiritof76.com/wacokillers.html, or at 1-800-244-2224. Credit cards accepted; volume discounts available.

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