By Dubious Means
Quick judicial fixes undermine our faith in democracy
The Violence Against Women Act slipped into law in 1994 without most members of Congress quite knowing what they were passing. We have Andrea Dworkin's word on this. Dworkin is surely a contender for the North American title of most overwrought, man-hating feminist. She told the New Republic at the time that the only possible explanation for the bill's popularity in the Senate was that "senators don't understand the meaning of the legislation that they pass." In plain English, she seemed to mean that Congress was naively institutionalizing the radical view of domestic violence as antifemale terrorism by a relentless oppressor class--men.
The same congressional innocence blurred the federalism issue that has now brought the Violence Against Women Act to the Supreme Court. The act turned many rapes and much domestic violence into federal civil rights violations. It gave federal courts jurisdiction in domestic violence cases, allowing plaintiffs to sue in federal as well as state courts on the same complaints. Chief Justice William Rehnquist raised the issue of federal overreach at the time, arguing that Congress was increasingly inclined to federalize offenses for symbolic reasons.
In passing the legislation, Congress cited its all-purpose excuse for overriding or duplicating states' jurisdiction, the commerce clause of the Constitution. Congress said that violence against women has a significant effect on the economy, particularly by impeding women's travel and employment. Feminist lobbyists claimed an annual loss to employers of up to $5 billion because of male-on-female domestic violence. But if this is right, why couldn't Congress cite the cost of all violence directed at females (41 percent of the annual total) as well as all the violence directed at males (59 percent)? Surely all violence, not just the "gender based" variety, has an economic effect.
The obvious is true: The commerce clause is an all-purpose pretext for dubious federal legislation. Nobody can say with a straight face that "gender based" violence involves interstate commerce. The Supreme Court should strike the law down, and it probably will.
Flimsy reasoning. This issue ought to stimulate discussion on the increasing use of other pretexts by courts and bureaucrats to overstep authority and get predetermined results. Many state supreme courts, for example, have cited vague language in state constitutions to justify the equalizing of school funding. A strong moral case can certainly be made that richer school districts should subsidize poorer ones, but citing vaporous, hortatory, constitutional clauses about "a sound, basic education" or "education for all children" is a dubious and inherently undemocratic way to impose dramatic change. In some cases, the vague language is used to forbid well-off districts from raising more funds for schools, even after giving up the money requested for poorer schools.
The same game is sometimes played when state supreme courts feel politically inclined to strike down tort reform legislation. The Oregon court struck down a 12-year-old law capping noneconomic damages in civil suits by pointing to this line in the state Constitution: "In all civil cases the right of Trial by Jury shall remain inviolate." What say? The right to jury trial, announced in 1857, forbids tort reform? Judges often must interpret century-old laws in the light of current conditions. But when doing so, it is best not to point to vague and unexceptional prose as a mandate for overturning law.
A current example of this bad judicial habit is the December 20 Vermont Supreme Court decision mandating marriage or domestic partner benefits for homosexuals. The ruling came on the basis of a misty "common benefits" clause in the state Constitution (government is "instituted for the common benefit, protection and security of the people"). As Jonathan Rauch of the National Journal writes, "To read this clause as offering clear or explicit grounds to mandate marriage or domestic partner benefits for homosexuals is a stretch, to say the least." Serious and contentious issues call for more than quick little judicial stretches or fixes. An important social decision should not be imposed from above on the basis of a vague, throat-clearing passage that no Vermont legislator ever imagined would be bent to such a purpose.
Another bit of judicial fixing is converting a private association into a public accommodation for the benefit of a constituency that wants in. The New Jersey Supreme Court managed to turn the Boy Scouts, a private swimming club, and Princeton's private dining clubs into public accommodations. Richard Sincere, a libertarian and gay activist, made more sense than the court. He argued that forcing the Scouts to accept gays "threatens all of us who want to set standards for our organizations--including gay men and lesbians." That would seem to apply to private dining clubs, as well as to more obviously bigoted old-line country clubs. The Jersey court's commitment to inclusion is admirable. Its legal tactics are not.
Quick and dubious fixes, whether legislative or judicial, clearly undermine faith in any democratic system. The motives of the fixers are often the highest, but we should know by now that noble sentiments can do just as much damage as tawdry ones.
This story appears in the January 24, 2000 print edition of U.S. News & World Report.