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Rape is evil but can’t be regulated as commerce, Supreme Court says

May 15th, 2000

CONTACT: Rich Jefferson (540) 338-8663 or media@hslda.org

WASHINGTON, D.C.—By a razor-thin 5-4 majority vote, the Supreme Court ruled today that Congress’s power to regulate commerce does not include the power to regulate rape. United States v. Morrison, et al., Nos. 99-5 and 99-29 (May 15, 2000). Congress enacted the Violence Against Women Act in 1994, but the court struck down the portion of the law that allowed petitioner Christy Brzonkala to file her case in federal court.

The Center for Original Intent of the Constitution filed an amicus brief in this case, effectively arguing that rape is evil, but it is not commerce. The Founders intended to give Congress adequate power to address problems that the states could not handle on their own. This did not give Congress any power over matters where states were “separately competent” to govern, such as criminal laws against rape and arson.

Brzonkala’s attorney, Eileen Wagner, put the case in perspective when she told the Associated Press she expected the law to be struck down, but “the national debate was worth it for sure.” Before passing the Violence Against Women Act, Congress assembled a “mountain of data” to prove that violence against women has an impact on the economy. Having demonstrated that rape has a “substantial effect” on the economy, Congress claimed the power to step in and legislate.

Five of the nine justices disagreed. They insisted on a higher standard, set by the text of the Constitution. Chief Justice Rehnquist wrote, for the majority, “We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local.” Morrison, slip op. at 18.

Justice Thomas concurred, but insisted that the very notion of allowing Congress to regulate anything that “substantially effects” commerce is inconsistent with the original understanding of Congress’s powers and with the Supreme Court’s early cases. “Until this Court replaces its existing Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will continue to see Congress appropriating state police powers under the guise of regulating commerce.” Morrison, Thomas, J., concurring, slip op. at 1.

The Center for the Original Intent of the Constitution agrees with Justice Thomas’s concurrence. In Morrison and in Jones v. United States (another Supreme Court case that is soon to be decided), the Center’s brief urged the Court to abandon the “substantial effects” test and adopt the standard that our Founders themselves used during the Constitutional Convention in 1787. Rape (in Morrison) and arson (in Jones) are activities that each have a “substantial effect” on commerce, but they lie well within the states’ traditional power to punish. Under our Founders’ original understanding of the Constitution, these would be matters for state and local governments to address, not the federal government.

The Center is “pleased, but not satisfied” with today’s ruling. Pursuing its stated mission, the Center will continue to file well-researched, well-written original intent briefs until the Supreme Court restores our Founders’ vision of a federal government of limited and enumerated powers.