Amicus Curiae Brief — Brzonkala v. Morrison (Nos. 99-29, 99-5)

) Supreme Court, U S.

3) ) * oF

DEC |! 133) FIL |

Nos. 99-5 and 99! Ces OF THE CLERK

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA. PETITIONER

Vv.

ANTONIO J. MORRISON, ET AL.. RESPONDENTS

CHRISTY BRZONKALA, PETITIONER

V.

ANTONIO J. MORRISON, ET AL., RESPONDENTS

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF AMICUS CURIAE THE CLAREMONT INSTITUTE

CENTER FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF RESPONDENTS

JOHN C. EASTMAN EDWIN MEESE III

THE CLAREMONT INSTITUTE COUNSEL OF RECORD

CENTER FOR CONSTITU- 214 MASSACHUSETTS AVE., N.E.

TIONAL JURISPRUDENCE WASHINGTON, D.C. 20002

250 W. FIRST ST., SUITE 330 (202) 546-4400

CLAREMONT, CA 91711

Counsel for Amicus Curiae The Claremont Institute

Center for Constitutional Jurisprudence

QUESTIONS PRESENTED

1. Whether the Fourth Circuit correctly held that Congress

exceeded its constitutional authority under the Commerce

Clause when it provided a civil remedy, complete with

attorneys fees, for non-commercial violent conduct that

involved neither a regulation of commerce nor activity

whose regulation was necessary and proper to give effect

to a regulation of commerce, but was instead conduct

traditionally falling within the police powers reserved to

the States?

2. Whether the Fourth Circuit correctly held that Congress

exceeded its constitutional authority under Section 5 of the

14° Amendment when it provided a civil remedy,

complete with attorneys fees, for violent conduct

motivated by gender animus, when the states already

protected against such conduct through criminal and tort

law?

(i)

ii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED........................ ‘sia aabaehituaaieachbinianiiteahid i

EE ii

TA iii

SUMMARY OF ARGUMENT .....0..............ccccccccccccccccccceccers 2

REESE ANS SRC) a 5

I. IN ENACTING THE VAWA, CONGRESS HAS

REJECTED THE PRINCIPLE OF ENUMERATED

POWERS, A PRINCIPLE WHICH THE FOUNDERS

BELIEVED TO BE ESSENTIAL TO LIBERTY..............00000000.. 5

Il. THE VAWA IS NEITHER A REGULATION OF

COMMERCE NOR A NECESSARY AND PROPER

MEANS OF GIVING EFFECT TO A REGULATION

EA A ll

A. As Originally Conceived, Congress’s Power

Under the Commerce Clause Was Limited To

The Regulation of Interstate Trade.................... 11

B. Even Under The Expanded View of the

Commerce Clause Taken In This Court's

Modern-Era Precedents, The VAWA Exceeds

The Outer Limits of the Power Afforded to

Ill. THE VAWA CANNOT BE SUSTAINED AS AN

EXERCISE OF CONGRESS’S POWER UNDER

SECTION 5 OF THE 14" AMENDMENT. .........-.-.ccccccceosesee 17

renee erccessecnesnnerenieneminninentmadiannseinpesenpmnantnts 19

TABLE OF AUTHORITIES

CASES

A.L.A. Schecter Poultry Corp. v. United States,

ee crereneecntemnnmenene 13, 15, 16

Alden v. Maine, 119 S.Ct. 2240 (1999)........cccccccseeseeseeeees 3,17

American Federation of State, County, and

Mun. Employees, AFL-CIO v. State of Washington,

ee) en 18

Atascadero State Hospital v. Scanlin, 473 U.S. 234 (1985)..8

Bartkus v. People of State of Illinois, 359 U.S. 121 (1959)...5

Bowman v. Railway Co., 125 U.S. 465 (1888) .................. 13

Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827) ........ 13

Carter v. Carter Coal Co., 298 U.S. 238 (1936)............ 10, 13

City of Boerne v. Flores, 521 U.S. 507 (1997). .....c..ccccccee0s 18

College Sav. Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd., 119 S.Ct. 2219 (1999)........cccccce0 3,17

Corfield v. Coryell, 6 F.Cas. 546 (C.C.E.D.Pa. 1823)...11, 12

FERC v. Mississippi, 456 U.S. 742 (1982) ........ccccceeccesseeseees 9

Florida Prepaid Postsecondary Educ. Expense Bd. v.

College Sav. Bank, 119 S.Ct. 2199 (1999) ........cccccceeees 3,17

Garcia v. San Antonia Metropolitan Transportation

Authority, 469 U.S. 528 (1985).........ccccceeseeesenees 6, 8,9, 13

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)........... passim

Gregory v. Ashcroft, 501 U.S. 452 (1991) ......ccccceeeeeees 3, 8,9

In re Rahrer, 140 U.S. 545 (1891) .........cccccccccceeeceeeeeeeeneneees 13

Jones & Laughlin Steel, 301 U.S. 1 (1937)......cccccccceeseeeeeees 16

Kidd v. Pearson, 128 U.S. 1 (1888)............cccccccceseeeeeeeeneseees 12

IV

Leisy v. Hardin, 135 U.S. 100 (1890) ...........cccccccccccesseeeeeeees 13

M 'Culloch v. Maryland, 17 U.S. (4 Wheat.)

FP eee snnnsinnavitinnaninniiiisiasiiiiintaiiieinaaataed 8,10, 15

Mobile Co. v. Kimball, 102 U.S. 691 (1880) .........c..cccccceeee 13

New York v. United States, 505 U.S. 144 (1992)........... 2, 4,5

Printz v. United States, 521 U.S. 898 (1997)..............000+- 2, 16

Seminole Tribe of Florida v. Florida,

EO ee 3, 4,17

The Civil Rights Cases, 109 U.S. 3 (1883) ............cccccc0es0000s 17

The License Cases, 46 U.S. (S How.) 504 (1847).......... 12, 13

United States v. E. C. Knight Co.,

ae hs We Gee etrcticnteaeettihdiaiinsccensienieniiinmecaniness 10, 12, 13

United States v. Lopez, 514 U.S. 549 (1995) .........cc0000. passim

Washington v. Davis, 426 U.S. 229 (1976)..........-c0cceesee0e00+ 18

CONSTITUTIONS AND STATUTES

Declaration of Independence...................ccccccesseeeseeeeeseeseensenes 6

eT 8

Se SA, I Be Bes Becteenncscsserspcsenessestanennomnneinnan 8

Fe 2,8

Violence Against Women Act of 1994, Pub. L. No. 103-322,

§§ 40001-40703, 108 Stat. 1796, 1902-S5.........cccccceeeeeeee +

eS Ce tetteniadittactimantintaiutinartiinsiein passim

OTHER AUTHORITIES

Tench Coxe to the Virginia Commissioners at Annappolis

(Sept. 13, 1786), reprinted in 3 THE FOUNDERS’

CONSTITUTION 473-74 (P. Kurland & R. Lerner eds.,

Vv

Gordon S. Jones & John A. Marini, eds., The Jmperial

Congress: Crisis in the Separation of Powers (1988)........ 2

James Wilson, Pennsylvania Ratifying Convention (Dec. 4,

1787), reprinted in 1 THE FOUNDERS’ CONSTITUTION 62...7

James Wilson, Pennsylvania Ratifying Convention (Nov. 26,

1787), reprinted in 2 James Wilson, The Works of James

Wilson 770 (Robert Green McCloskey ed., 1967) ........... 6

THE FEDERALIST No. 22 (Hamilton)

(C. Rossiter & C. Kesler eds., 1999) ...........cccccceceseeseseneeees 5

THE FEDERALIST NO. 28 (Hamilton) ..................cccccseeseeeeeeerens r)

THE FEDERALIST NO. 33 (Hamilton) ................00s-sseeseseeseeeeees 9

THE FEDERALIST NO. 39 (Madison) .................:sseseeseseeseeerees 7

THE FEDERALIST No. 42 (Madison) ................:cccseecsseeeeeeeneees 5

THE FEDERALIST NO. 45 (Madison) ................0ccsseeeeeeeeees 7, 10

THE FEDERALIST NO. 47 (Madison) ................cccseeeceeeeeeeneeeees 6

THE FEDERALIST NO. 51 (Madison) ...............:0--eeeeeeeeeeees 6,9

S. Rep. No. 197, 102d Cong., 1% Sess. (1991) .......-.-:s:-se+0+: 18

S. Rep. No. 138, 103" Cong., 1* Sess. (1993) .......ss:ss0ess0e 11

SO aS es

Nos. 99-5 and 99-29

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

Vv.

ANTONIO J. MORRISON, ET AL., RESPONDENTS

CHRISTY BRZONKALA, PETITIONER

Vv.

ANTONIO J. MORRISON, ET AL., RESPONDENTS

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF AMICUS CURIAE THE CLAREMONT INSTITUTE

CENTER FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE'

The Claremont Institute for the Study of Statesmanship and

Political Philosophy is a non-profit educational foundation

whose stated mission is to “restore the principles of the

American Founding to their rightful and preeminent authority

in our national life,” including the principles, at issue in this

case, that We the People delegated to the national

'The Claremont Institute Center for Constitutional Jurisprudence files this

brief with the consent of all parties. The letters granting consent are

being filed concurrently. In accord with Rule 37.6, no counsel for a party

has authored this brief in whole or in part, nor has anyone but amicus

curiae and its members made a monetary contribution to the preparation

and submission of this brief.

2

government only certain, specifically enumerated powers and

that the bulk of sovereign power, including the police power

at issue here, was reserved to the States or to the people.

The Institute pursues its mission through academic

research, publications, scholarly conferences, and the

selective appearance as amicus curiae in cases of

constitutional significance. Of particular relevance here, the

Institute has published extensively about the constitutional

limitations on the powers delegated to the national

government, including a book edited by Gordon Jones and

Institute Senior Fellow John Marini entitled The Imperial

Congress: Crisis in the Separation of Powers.

Recently, in order to further advance its mission, the

Claremont Institute established an in-house public interest

law firm, the Center for Constitutional Jurisprudence. The

Center’s purpose is to further the mission of the Claremont

Institute through strategic litigation, including the filing of

amicus curiae briefs in cases such as this that involve issues

of constitutional significance going to the heart of the

founding principles of this nation.

SUMMARY OF ARGUMENT

Over the past decade, this Court has reinvigorated the

Founders’ vision of a constitutional system based on a

division of the people’s sovereign powers between the

national and state governments. In New York v. United

States, 505 U.S. 144, 156-57 (1992), for example, the Court

recognized that the principle of reserved powers underlying

the Tenth Amendment serves as a barrier to the exercise of

power by Congress. In Printz v. United States, 521 U.S. 898,

923-24 (1997), the Court recognized that the principle was

grounded not so much in the text of the Tenth Amendment

but in the word “proper” of the Necessary and Proper clause,

as informed by the overall structure of the Constitution and

the numerous clauses that recognize the retention of

3

sovereign powers by the States. This same idea of state

sovereignty has been given voice in the parallel cases arising

under the Eleventh Amendment: Seminole Tribe of Florida

v. Florida, 517 U.S. 44 (1996); Alden v. Maine, 119 S.Ct.

2240 (1999); College Sav. Bank v. Florida Prepaid

Postsecondary Educ. Expense Bd., 119 S.Ct. 2219 (1999);

Florida Prepaid Postsecondary Educ. Expense Bd. v.

College Sav. Bank, 119 S.Ct. 2199 (1999).

Yet for the Founders, the division of sovereign powers

was not designed simply or even primarily to insulate the

states from federal power. It was designed so that the states

might serve as an independent check on the federal

government, preventing it from expanding its powers against

ordinary citizens. United States v. Lopez, 514 U.S. 549, 552,

582 (1995). And it was designed so that decisions affecting

the day-to-day activities of ordinary citizens would continue

to be made at a level of government close enough to the

people so as to be truly subject to the people’s control. See

Gregory v. Ashcroft, 501 U.S. 452, 458 (1991). The Tenth

and Eleventh amendments are simply examples of what the

Founders accomplished principally through the main body of

the Constitution itself. Congress was delegated only

specifically enumerated powers (and the necessary means of

giving effect to those powers) over subjects of truly national

concern; it was not given a general police power to control

the ordinary, local activities of the citizenry.

In enacting the Violence Against Women Act of 1994,

Pub. L. No. 103-322, §§ 40001-40703, 108 Stat. 1796, 1902-

55, Congress purportedly acted pursuant to its Article I,

Section 8 power “to regulate commerce . . . among the

States” and/or its power under Section 5 of the 14”

Amendment to insure that no State denied its citizens the

equal protection of the laws. Neither of these powers is

broad enough to support the enactment by Congress of the

provision at issue here, which creates a private right of action

against any person “who commits a crime of violence

|

i i

4

motivated by gender.” 42 U.S.C. § 13981 (“VAWA”). The

VAWA is not a regulation of commerce, and it is not a law

that gives effect to some regulation of commerce (much less

a “necessary” and “proper” one). To construe the commerce

clause as broadly as did Congress when it enacted the

VAWA and as does the Executive branch in its arguments

before this Court, is to render meaningless the primary check

on federal power envisioned by the founders—the doctrine of

limited, enumerated powers. Moreover, by essentially

rendering superfluous the tort law of all 50 states (and, if the

principle be taken to its next logical step, the criminal law as

well), Congress has here intruded upon the powers reserved

to the States in a way that makes the intrusions at issue in

New York v. United States and Seminole Tribe \ook like

child’s play.

Nor does the 14" Amendment afford to Congress the

powers it has claimed here. By this statute, Congress has

authorized a civil suit against private citizens, not against the

state governments whose supposed denials of equal

protection are the putative basis for the exercise of power

here. Even if such a remedy might be permissible in some

circumstances, it cannot be permissible when there is no

underlying violation by the State. Petitioners’ argument that

there is such a violation amounts to what is essentially a

“comparable worth of crimes” analysis, an analysis that has

been rejected by the courts in analogous contexts and that

finds no support in this Court’s 14” Amendment

jurisprudence.

In sum, neither the Commerce Clause nor Section 5 of

the 14 Amendment provide a constitutional basis for the

VAWA,; the well-reasoned decision of the Fourth Circuit

invalidating that statutory provision should therefore be

affirmed.

5

ARGUMENT

I. IN ENACTING THE VAWA, CONGRESS HAS

REJECTED THE PRINCIPLE OF ENUMERATED

POWERS, A PRINCIPLE WHICH THE

FOUNDERS BELIEVED TO BE ESSENTIAL TO

LIBERTY.

When the framers of our Constitution met in Philadelphia

in 1787, it was widely acknowledged that a stronger national

government than existed under the Articles of Confederation

was necessary if the new government of the United States

was going to survive. The Continental Congress could not

honor its commitments under the Treaty of Paris; it could not

meet its financial obligations; it could not counteract the

crippling trade barriers that were being enacted by the several

states against each other; and it could not even insure that its

citizens, especially those living on the western frontier, were

secure in their lives and property. See, e.g, Letter from

Tench Coxe to the Virginia Commissioners at Annappolis

(Sept. 13, 1786), reprinted in 3 THE FOUNDERS’

CONSTITUTION 473-74 (P. Kurland & R. Lerner eds., 1987)

(noting that duties imposed by the states upon each other

were “as great in many instances as those imposed on foreign

Articles”); THE FEDERALIST No. 22, at 144-45 (Alexander

Hamilton) (C. Rossiter & C. Kesler eds., 1999) (referring to

“(t]he interfering and unneighborly regulations in some

States,” which were “serious sources of animosity and

discord” between the States); New York, 505 U.S. at 158

(“The defect of power in the existing Confederacy to

regulate the commerce between its several members [has]

been clearly pointed out by experience") (quoting The

Federalist No. 42, p. 267 (C. Rossiter ed. 1961)).

But the framers were equally cognizant of the fact that

the deficiencies of the Articles of Confederation existed by

design, due to a genuine and almost universal fear of a

strong, centralized government. See, e.g., Bartkus v. People

of State of Illinois, 359 U.S. 121, 137 (1959) (“the men who

6

wrote the Constitution as well as the citizens of the member

States of the Confederation were fearful of the power of

centralized government and sought to limit its power”);

Garcia v. San Antonia Metropolitan Transportation

Authority, 469 U.S. 528, 568-69 (1985) (Powell, J.,

dissenting, joined by Chief Justice Burger and Justices

Rehnquist and O’Connor). Our forebears had not

successfully prosecuted the war against the King’s tyranny

merely to erect in its place another form of tyranny.

The central problem faced by the convention delegates,

therefore, was to create a government strong enough to meet

the threats to the safety and happiness of the people, yet not

so strong as to itself become a threat to the people’s liberty.

See THE FEDERALIST No. 51, at 322 (Madison). The framers

drew on the best political theorists of human history to craft a

government that was most conducive to that end. The idea of

separation of powers, for example, evident in the very

structure of the Constitution, was drawn from Montesquieu,

out of recognition that the “accumulation of all powers,

legislative, executive, and judiciary, in the same hands .. .

may justly be pronounced the very definition of tyranny.”

THE FEDERALIST No. 47, at 301 (Madison).

But the framers added their own contribution to the

science of politics, as well. In what can only be described as

a radical break with past practice, the Founders rejected the

idea that the government was sovereign and indivisible.

Instead, the Founders contended that the people themselves

were the ultimate sovereign, see, e.g., James Wilson, Speech

at the Pennsylvania Ratifying Convention (Nov. 26, 1787),

reprinted in 2 James Wilson, The Works of James Wilson

770 (Robert Green McCloskey ed., 1967), and could delegate

all or part of their sovereign powers, to a single government

or to multiple governments, as, in their view, was “most

likely to effect their Safety and Happiness,” Declaration of

Independence, § 2. The importance of the division of

7

sovereign powers was highlighted by James Wilson in the

Pennsylvania ratifying convention:

I consider the people of the United States as forming

one great community, and I consider the people of the

different States as forming communities again on a

lesser scale. From this great division of the people

into distinct communities it will be found necessary

that different proportions of legislative powers should

be given to the governments, according to the nature,

number and magnitude of their objects.

Unless the people are considered in these two views,

we shall never be able to understand the principle on

which this system was constructed. I view the States

as made for the people as well as by them, and not the

people as made for the States. The people, therefore,

have a right, whilst enjoying the undeniable powers

of society, to form either a general government, or

state governments, in what manner they please; or to

accommodate them to one another, and by this means

preserve them all. This, I say, is the inherent and

unalienable right of the people.

James Wilson, Pennsylvania Ratifying Convention, (Dec. 4,

1787), reprinted in 1 THE FOUNDERS’ CONSTITUTION 62.

As a result, it became and remains one of the most

fundamental tenets of our constitutional system of

government that the sovereign people delegated to the

national government only certain, enumerated powers,

leaving the residuum of power to be exercised by the state

governments or by the people themselves. See, e.g., THE

FEDERALIST No. 39, at 256 (Madison) (noting that the

jurisdiction of the federal government “extends to certain

enumerated objects only, and leaves to the several States a

residuary and inviolable sovereignty over all other objects”);

THE FEDERALIST No. 45, at 292-93 (Madison) (“The powers

delegated by the proposed Constitution to the federal

8

government are few and defined. Those which are to remain

in the State governments are numerous and indefinite”);

M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819)

(Marshall, C.J.) (“We admit, as all must admit, that the

powers of the government are limited and that its limits are

not to be transcended”); Gregory, 501 U.S. at 457 (“The

Constitution created a Federal Government of limited

powers’).

This division of sovereign powers between the two great

levels of government was not simply a constitutional add-on,

by way of the Tenth Amendment. See U.S. CONST. Amend.

X (“The 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”). Rather, it is

inherent in the doctrine of enumerated powers embodied in

that text of the main body of the Constitution itself. See U.S.

CONST. ART. I, Sec. 1 (“All legislative Powers herein granted

shall be vested in a Congress of the United States” (emphasis

added)); Art. I, Sec. 8 (enumerating powers so granted); see

also M’Culloch, 17 U.S. (4 Wheat.) at 405 (“This

government is acknowledged by all, to be one of enumerated

powers. The principle, that it can exercise only the powers

granted to it, . . . is now universally admitted”); United States

v. Lopez, 514 U.S. 549, 552 (1995) (“We start with first

principles. The Constitution creates a Federal Govern-ment

of enumerated powers”).

The constitutionally-mandated division of the people’s

sovereign powers between federal and state governments was

not designed to protect state governments as an end in itself,

but rather “was adopted by the Framers to ensure protection

of our fundamental liberties.” Lopez, 514 U.S. at 552

(quoting Gregory, 501 U.S. at 458); see also Gregory, 501

U.S. at 458-59; Atascadero State Hospital v. Scanlin, 473

U.S. 234, 242 (1985) (quoting Garcia v. San Antonio

Metropolitan Transit Authority, 469 U.S. 528, 572 (1985)

(Powell, J., dissenting)); Garcia, 469 U.S. at 582 (O’Connor,

9

J., dissenting) (“This division of authority, according to

Madison, would produce efficient government and protect the

rights of the people”) (citing THE FEDERALIST No. 51, pp.

350-351 (Madison) (J. Cooke ed. 1961)). “Just as the

separation and independence of the coordinate branches of

the Federal Government serve to prevent the accumulation of

excessive power in any one branch, a healthy balance of

power between the States and the Federal Government will

reduce the risk of tyranny and abuse from either front.”

Lopez, 514 U.S. at 582 (quoting Gregory, 501 U.S. at 458);

Gregory, 501 U.S. at 459 (quoting THE FEDERALIST No. 28,

pp. 180-81 (Hamilton) (J. Cooke ed. 1961)); id. (quoting THE

FEDERALIST NO. 51, p. 323 (Madison) (J. Cooke ed. 1961));

see also Garcia, 469 U.S. at 581 (O’Connor, J., dissenting)

(“[The Framers] envisioned a republic whose vitality was

assured by the diffusion of power not only among the

branches of the Federal Government, but also between the

Federal Government and the States” (citing FERC v.

Mississippi, 456 U.S. 742, 790 (1982) (O’Connor, J.,

dissenting)); id at 571 (Powell, J., dissenting) (“The Framers

believed that the separate sphere of sovereignty reserved to

the States would ensure that the States would serve as an

effective ‘counterpoise’ to the power of the Federal

Government’).

When Congress acts beyond the scope of its enumerated

powers, therefore, it does more than simply intrude upon the

sovereign powers of the states; it acts without constitutional

authority, that is, tyrannically, and places our liberties at risk.

See, e.g., THE FEDERALIST No. 33, at 204 (Hamilton) (noting

that laws enacted by the Federal Government “which are not

pursuant to its constitutional powers, but which are invasions

of the residuary authorities of the smaller societies . . . will be

merely acts of usurpation, and will deserve to be treated as

such”).

Foremost among the powers not delegated to the federal

government was the power to regulate the health, safety, and

10

morals of the peopie—the so-called police power. See, e.g,

THE FEDERALIST No. 45, at 292-93 (Madison) (“The powers

reserved to the several States will extend to all the objects

which, in the ordinary course of affairs, concern the lives,

liberties, and properties of the people, and the internal order,

improvement, and prosperity of the State”); Gibbons vy.

Ogden, 22 U.S. (9 Wheat.) 1, 203 (1824) (“No direct general

power over these objects is granted to Congress; and,

consequently, they remain subject to State legislation”);

United States v. E. C. Knight Co., 156 U.S. 1, 11 (1895) (“It

cannot be denied that the power of a state to protect the lives,

health, and property of its citizens, and to preserve good

order and the public morals, ‘the power to govern men and

things within the limits of its dominion,’ is a power originally

and always belong to the states, not surrendered by them to

the general government”). The powers at issue in this case—

to define and punish assaults and to provide civil remedies

for intentional torts and rape—are within the core of the

police powers reserved to the states.

Congress does retain some measure of discretion to

choose the means necessary for giving effect to its

enumerated powers, of course, see infra, at 15, but it cannot

use its discretionary power over means in furtherance of ends

not granted to it. As Chief Justice Marshall noted in

M'Culloch v. Maryland: “[S]jhould congress, under the

pretext of executing its powers, pass laws for the

accomplishment of objects not intrusted to the [national]

government; it would become the painful duty of this tribunal

. .. to say, that such an act was not the law of the land.” 17

U.S. (4 Wheat.) at 423; see also Carter v. Carter Coal Co.,

298 U.S. 238, 317 (1936) (Hughes, C.J., separate opinion)

(“Congress may not use this protective [commerce] authority

as a pretext for the exertion of power to regulate activities

and relations within the states which affect interstate

commerce only indirectly”). Because, as described below,

Congress’s attempts to link the vintage exercise of the state

police powers at issue here to its power to regulate interstate

1]

commerce is pretext of the highest order, Chief Justice

Marshall’s admonition is directly on point: It is the duty of

this Court to say that the VAWA is not the law of the land.

Il. THE VAWA IS NEITHER A REGULATION OF

COMMERCE NOR A NECESSARY AND PROPER

MEANS OF GIVING EFFECT TO A REGULA-

TION OF COMMERCE.

A. As Originally Conceived, Congress’s Power Under

the Commerce Clause Was Limited To The

Regulation of Interstate Trade.

Both Congress in enacting the VAWA, and the Executive

branch in defending it before this Court, make a telling

conflation of terms that demonstrates just how far removed

from the Founders’ conception of the Commerce power this

statute really is. The VAWA is a permissible exercise of

Congress’s power to regulate commerce among the states,

notes the 1993 Senate Report, because “[g]jender-based

violence bars its most likely targets—women—from full

[participation] in the national economy.” S. Rep. No. 138,

103 Cong., 1" Sess., at 54 (1993) (cited in Brief for the

United States, at 6) (emphasis added). “Violent crime against

women costs this country at least 3 billion . . . dollars a year,”

and a “significant portion of these costs [is] attributeed to the

impact of gender-motivated violence on _ victims’

participation and performance in the workplace. Id. at 33, 54

(cited in Brief for the United States, at 6-7) (emphasis added).

For the Founders, “commerce among the states” was not

synonymous with “the economy” or with “the workplace.”

Far from it. “Commerce” was trade, not business generally.

See, e.g., Corfield v. Coryell, 6 F .Cas. 546, 550 (C.C.E.D.Pa.

1823) (Washington, J., on circuit) (“Commerce with foreign

nations, and among the several states, can mean nothing more

than intercourse with those nations, and among those states,

for purposes of trade, be the object of the trade what it may”).

Indeed, in the first major case arising under the clause to

12

reach this Court, it was contested whether the clause even

extended so far as to include “navigation.” Chief Justice

Marshall, for the Court, held that it did, but even under his

definition, “commerce” was limited to “intercourse between

nations, and parts of nations, in ail its branches.” Gibbons v.

Ogden, 22 U.S. (9 Wheat.) 1, 190 (1824); see also Corfield, 6

F.Cas. At 550 (“Commerce .. . among the several states . . .

must include all the means by which it can be carried on,

{including} . . . passage over land through the states, where

such passage becomes necessary to the commercial

intercourse between the states”).

The Gibbons Court specifically rejected the notion “that

[commerce among the states] comprehend[{s] that commerce,

which is completely internal, which is carried on between

man and man in a State, or between different parts of the

same State, and which does not extend to or affect other

States.” Gibbons, 22 U.S. at 194. In other words, for Chief

Justice Marshall and his colleagues, the commerce clause did

not even extend to trade carried on between different parts of

a state. The notion that the power to regulate commerce

included the power to regulate other kinds of business or the

economy generally, therefore, was completely foreign to

them.

This understanding of the Commerce Clause continued

for nearly a century and a half. Manufacturing was not

included in the definition of commerce, held the Court in

United States v. E.C. Knight Co., 156 U.S. 1, 12 (1895),

because “Commerce succeeds to manufacture, and is not a

part of it.” “The fact that an article is manufactured for

export to another State does not of itself make it an article of

interstate commerce ... .” Jd. at 13; see also Kidd v.

Pearson, 128 U.S. 1, 20 (1888) (upholding a state ban on the

manufacture of liquor, even though much of the liquor so

banned was destined for interstate commerce). Neither were

retail sales included in the definition of “commerce.” See

The License Cases, 46 U.S. (5 How.) 504 (1847) (upholding

13

state ban on retail sales of liquor, as not subject to Congress’s

power to regulate interstate commerce); see also A.L.A.

Schecter Poultry Corp. v. United States, 295 U.S. 495, 542,

547 (1935) (invalidating federal law regulating in-state retail

sales of poultry that originated out-of-state and fixing the

hours and wages of the intrastate employees because the

activity related only indirectly to commerce).

For the Founders and for the Courts which decided these

cases, regulation of such activities as retail sales,

manufacturing, and agriculture was part of the police powers

reserved to the states, not part of the power over commerce

delegated to Congress. See, e.g., EC. Knight, 156 U.S. at 12

(“That which belongs to commerce is within the jurisdiction

of the United States, but that which does not belong to

commerce is within the jurisdiction of the police power of the

State”) (citing Gibbons, 22 U.S. (9 Wheat.) at 210; Brown v.

Maryland, 25 U.S. (12 Wheat.) 419, 448 (1827); The License

Cases, 46 U.S. (5 How.) at 599; Mobile Co. v. Kimball, 102

U.S. 691 (1880); Bowman v. Railway Co., 125 U.S. 465

(1888); Leisy v. Hardin, 135 U.S. 100 (1890); Jn re Rahrer,

140 U.S. 545, 555 (1891)). And, as the Court noted in £.C.

Knight, it was essential to the preservation of the states and

therefore to liberty that the line between the two powers be

retained:

It is vital that the independence of the commercial

power and of the police power, and the delimitation

between them, however sometimes perplexing,

should always be recognized and observed, for, while

the one furnishes the strongest bond of union, the

other is essential to the preservation of the autonomy

of the States as required by our dual form of

government... .

156 U.S. at 13; see also Carter Coal, 298 U.S. at 301

(quoting E.C. Knight); Garcia, 469 U.S. at 572 (Powell, J.,

dissenting, joined by Chief Justice Burger and Justices

Rehnquist and O’Connor) (“federal overreaching under the

14

Commerce Clause undermines the constitutionally mandated

balance of power between the States and the Federal

Government, a balance designed to protect our fundamental

liberties”).

While these decisions have since been criticized as

unduly formalistic, the “formalism”—if it can be called that

at all—is mandated by the text of the Constitution itself. See,

e.g., Lopez, 514 U.S. at 553 (“limitations on the commerce

power are inherent in the very language of the Commerce

Clause”) (citing Gibbons); id at 586 (Thomas, J., concurring)

(“the term ‘commerce’ was used in contradistinction to

productive activities such as manufacturing and agriculture”).

And it is a formalism that was recognized by Chief Justice

Marshall himself, even in the face of a police power

regulation that had a “consideral influence” on commerce:

The object of [state] inspection laws, is to improve

the quality of articles produced by the labour of a

country; to fit them for exportation; or, it may be, for

domestic use. They act upon the subject before it

becomes an article of foreign commerce, or of

commerce among the States, and prepare it for that

purpose. They form a portion of that immense mass

of legislation [reserved to the States]. . . . No direct

general power over these objects is granted to

Congress; and, consequently, they remain subject to

State legislation.

Gibbons, 22 U.S. at 203; see also id. at 194-95

(“Comprehensive as the word ‘among’ is, it may very

properly be restricted to that commerce which concerns more

States than one. . . . The enumeration presupposes something

not enumerated; and that something, if we regard the

language or the subject of the sentence, must be the

exclusively internal commerce of a State”). As this Court

noted recently in Lopez, the “justification for this formal

distinction was rooted in the fear that otherwise ‘there would

be virtually no limit to the federal power and for all practical

> a -

15

purposes we would have a completely centralized

government.” 514 U.S. at 555 (quoting Schechter Poultry,

295 U.S. at 548).

As should be obvious, the provision of VAWA at issue

here is not a regulation of “commerce among the states,” as

that phrase was understood by those who framed and those

who ratified the Constitution. Nor do the legislative findings

about the impact of gender-motivated violance on the

ecomony bring the VAWA under Congress’s powers

pursuant to the Necessary and Proper Clause. As has long

been recognized, that clause gives Congress power over the

means it will use to give effect to its enumerated powers; it

does not serve as an end power unto itself. See, e.g.,

Gibbons, 22 U.S. (9 Wheat.) at 187 (describing the phrase

“necessary and proper” as a “limitation on the means which

may be used”); M'Culloch, 17 U.S. (4 Wheat.) at 324

(describing the Necessary and Proper Clause as merely a

means clause). There has to be a regulation of commerce to

which Congress hopes to give effect when it acts pursuant to

the Necessary and Proper Clause, and there is no such

regulation here. Congress simply cannot use such a pretextual

reed to support its exercise of what is essentially a police

power. M’'Culloch, 17 U.S. (4 Wheat.) at 423. While it is

undoubtedly true that, in today’s world, the quantum of

“commerce among the states” is much larger than in the

founding era, the expansion in quantity does not give

Congress a different qualitative power. Under the original

view of the Commerce Clause, therefore, this is an extremely

easy case.

B. Even Under The Expanded View of the Commerce

Clause Taken In This Court’s Modern-Era

Precedents, The VAWA Exceeds The Outer Limits

of the Power Afforded to Congress.

Even when the Court expanded the original

understanding of the Commerce Clause in order to validate

New Deal legislation enacted in the wake of the economic

16

emergency caused by the Great Depression, it was careful to

retain certain limits lest the police power of the states be

completely subsumed by Congress.

Thus, in Jones & Laughlin Steel, this Court stated that the

power to regulate commerce among the states “must be

considered in the light of our dual system of government and

may not be extended so as to embrace effects upon interstate

commerce so indirect and remote that to embrace them, in

view of our complex society, would effectually obliterate the

distinction between what is national and what is local and

create a completely centralized government.” 301 U.S. 1, 37

(1937) (cited in Lopez, 514 U.S. at 557). Similarly, Justice

Cardozo noted in Schechter Poultry that “[t}here is a view of

causation that would obliterate the distinction of what is

national and what is local in the activities of commerce.” 294

U.S. 495, 554 (1935) (Cardozo, J., concurring) (quoted in

Lopez, 514 U.S. at 567).

These reservations were key to this Court’s decision in

Lopez. As in Lopez, the statute at issue here does not regulate

the channels or the instrumentalities of interstate commerce.

And although the Government’s use of the “substantial

effects” test discussed in Lopez essentially converts the

Necessary and Proper Clause from a means clause to an ends

clause (and therefore renders it constitutionally suspect, see

Lopez, 514 U.S. at 584-85 (Thomas, J., concurring), the

effects on interstate commerce articulated in the

Congressional “findings” here are no different than the “cost

of crimes” effect unsuccessfully relied upon by the

Government in Lopez.

In short, even under the expanded view of the commerce

clause that has been in place since the New Deal, this statute

remains what it would have been for Chief Justice Marshall:

A pretext for the exercise of police powers by Congress,

powers that were and of right ought to be reserved to the

states, or to the people. Given this Court’s recent solicitude

for the sovereignty of the States, see. «.g., Printz v. United

17

States, 521 U.S. 98 (1997); Seminole Tribe of Florida v.

Florida, 517 U.S. 44 (1996); Alden v. Maine, 119 S.Ct. 2240

(1999); College Sav. Bank v. Florida Prepaid Postsecondary

Educ. Expense Bd., 119 S.Ct. 2219 (1999); Florida Prepaid

Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119

S.Ct. 2199 (1999), it would be odd indeed if Congress could

intrude upon the powers reserved to the States, and hence on

State sovereignty, in the much more substantial way

presented by the VAWA.

Ill.THE VAWA CANNOT BE SUSTAINED AS AN

EXERCISE OF CONGRESS’S POWER UNDER

SECTION 5 OF THE 14" AMENDMENT.

In the VAWA, Congress has authorized a civil suit

against private citizens, not against the state governments

whose supposed denials of equal protection are the putative

basis for the exercise of power here. But the 14”

Amendment forbids the states from denying to any person

the equal protection of the laws, not private persons. See The

Civil Rights Cases, 109 U.S. 3 (1883). Even if such a private

remedy might be permissible in some circumstances, it

cannot be permissible where, as here, there is no underlying

violation by the State. Christy Brzonkala was not denied the

equal protection of the law; she did not even bother to avail

herself of either the criminal law or tort law afforded to her

by the Commonwealth of Virginia, and has never claimed

that the State would not have enforced those laws on her

behalf (much less that it would not have enforced those laws

because of her gender).

Petitioners’ contention is not that the State has

discriminated against women in its laws against murder, or

assault, or robbery, see Brief for the United States, at 42, but

is rather that more needs to be done for victims of gender-

motivated violence than is done for victims of ordinary, run-

of-the-mill violence. In other words, petitioners all but

concede that the states already provide equal protection; what

they seek here, and what VAWA provides them, is not a

guarantee of equal protection but of special protection. This

is necessary, apparently according to petitioners (and the so-

called findings of Congress on which their argument is

based), in order that conviction rates for rape (which

disparately impacts women) can be made comparable to

conviction rates for other crimes, such as murder or robbery.

See S. Rep. No. 197, 102d Cong., 1" Sess., at 44 (1991)

(describing the low conviction rate for rape) (quoted in Brief

for the United States, at 9); see also id. at 43 (describing

studies concuding “that crimes disproportionately affecting

women are often treated less seriously than comparable

crimes against men”) (quoted ‘n Brief for the United States,

at 8) (emphass added).

Such a “comparable worth of crime” analysis finds no

place in the jurisprudence of the 14” Amendment, and it

should be rejected now. See American Federation of State,

County, and Mun. Employees, AFL-CIO vy. State of

Washington, 770 F.2d 1401 (CA9 1985) (Kennedy, J.). The

disparate impact theory upon which it is based suffers from

the same infirmity. See Washington v. Davis, 426 U.S. 229

(1976). The 14° Amendment was designed to insure that

individuals received equal protection from their state

governments regardless of race, color, creed, or sex, not to

give Congress a pretext for appropriating to itself a general

police power or for providing additional remedies (such as

the attorneys fees at issue here, which is what this case

appears really to be about) to a particular class of citizens

that the States have not provided to anyone.

There is no constitutional violation by the states here;

hence, there can be no remedy under the 14" Amendment.

City of Boerne v. Flores, 521 U.S. 507, 531-32 (1997). The

VAWA simply cannot be sustained as an exercise of

Congress’s powers under Section 5 of the 14" Amendment.

19

CONCLUSION

The decision of the United States Court of Appeals for

the Fourth Circuit should be affirmed.

Respectfully submitted,

JOHN C. EASTMAN EDWIN MEESE III

THE CLAREMONT INSTITUTE Counsel of Record

CENTER FOR CONSTITU- 214 Massachusetts Ave., NE

TIONAL JURISPRUDENCE Washington, D.C. 20002

250 W. First St., Suite 330 (202) 546-4400

Claremont, California 91711

Counsel for Amicus Curiae The Claremont Institute

Center for Constitutional Jurisprudence

DATED: December 13, 1999