Constitutional counterpunch

By A. C. Kleinheider
web posted June 5, 2000

In what document would you find the following words: "We the People, distrustful of power, and believing that a government limited and dispersed protects freedom best, provided that our federal government would be one of enumerated powers, and that all power unenumerated would be reserved to the several states and to ourselves." One would think these words must come from one of our founding documents. This would be a logical assumption, not only because we feel the founders would agree with the former statement, but because we suspect that few people would agree with it today. The good news is that federalism still draws breath in the 21st century. The above quotation was appears in the Fourth Circuit Court of Appeals decision in Brzonkala v. Virginia Polytechnic Institute. On May 15, the Supreme Court upheld the Fourth Circuit's decision, a decision feminist groups denounced as reactionary. Little Americans everywhere should rejoice in this decision for it represents a true victory against the forces of Big Government in their quest to federalize police power.

In 1994, the Violence Against Women Act was passed as part of the Omnibus Crime bill. The Act included a provision that allowed victims of sexual violence to sue their attackers in federal court. Christy Brzonkala, the alleged victim of an attack by two football players at Virginia Tech, attempted to use the provision in the VAWA to sue Antonio Morrison, one of her two assailants, in federal court. It was her case, her plea for justice, which the Court ruled against.

Let me be clear taking advantage of the physically weaker sex for the purpose violent sexual assault is a despicable act. I would lose little sleep if Miss Brzonkala's male relatives took a length of chain, a tire iron, and some baseball bats and decided to exact a measure of justice on the cowards who violated their kin. If they asked me, in a sufficiently vague enough manner to maintain plausible deniability, I would gladly stand lookout while their "court was in session". What I believe is unacceptable, however, is using criminal violence as an excuse to do violence to the United States Constitution. What happened to Miss Brzonkala was an evil act, but we cannot not just decide that "something" must be done and subvert our system of government to in order to allow for "justice". We want the perpetrators of sexual violence to suffer and the federal government has proved on more than one occasion its capacity to inflict suffering. However, our federal government does not have the police power, nor should it. That power is reserved to the states.

In the Violence Against Women Act, Congress justified the federalizing of crimes "motivated by gender" by invoking the Commerce Clause. They asserted that widespread violence against women, and fear of violence, had a negative impact on the nation's economy, measured in the billions of dollars a year, by impairing the productivity and the mobility of female employees and students. There is no doubt violence against women is bound to have some impact on the economy. But as Wendy Kaminer asks us, "Try the common sense test: When you think of a rape in a college dormitory, do you think about interstate commerce?" If sexual violence can be regulated under the rubric of interstate commerce you have to start asking yourself what precisely does the Congress think is beyond its power.

In reaction to the Court's decision, Senator Charles Schumer of New York said, "Just at a time when the economic and social conditions of the world demand that we be treated as one country and not 50 states, the Supreme Court seems poised to undo decades and decades of a consensus that the federal government has an active role to play." Senator Schumer has done us the service of explicitly illustrating the root of the problem. Schumer is typical of an elite that sees no problem too small for the Federal Leviathan to tackle. They don't believe that the government closest to those being ruled is the most effective government. They don't believe that people in particular places can deal with their specific problems effectively. They like uniformity.

It is apparent that some of our Congressmen simply wish to have the power to make law as they see fit and enforce it. They will use whatever rationale they can to consolidate their power. The Rehnquist Court decided to stand against the rootless elites and for the people and their states. The Supreme Court stood with Little America against the federal government because to accept the government's reasoning in this case, the Chief Justice warned, "would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit or consumption." The Commerce Clause rationale, in essence, could be used to expand federal power to almost any activity as long as that activity could be related to the economy.

Terrible people do terrible things to innocent people and there must be justice for victims, but we cannot abandon our principles of government in order to achieve a desired result. A huge federal leviathan with police power over the entirety of peoples' actions is a powerful weapon. It is a weapon that can be used by those with acronyms, guns, and badges to inflict serious damage against weaker entities such as states and individuals. In those horrible moments when Christy Bzonkala was violently attacked, two men, rendered her helpless to their despicable acts. Granting the Federal Government supreme police power over its citizens would render all Americans helpless to a government capable of acts just as wicked on a wider scale.

A. C. Kleinheider writes from Nashville, Tennessee. His writing can be seen on

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