Supreme Court Once Again Limits Congressional Power

June 2000

Supreme Court Once Again Limits Congressional Power

By Scott Bullock

In May, the U.S. Supreme Court took another step toward restoring the principles of limited constitutional government by striking down a key provision of the Violence Against Women Act (VAWA), which created a federal private cause of action against a person “who commits a crime of violence motivated by gender.” The law was justified under the congressional interstate commerce power even though it involved neither interstate activity nor commerce.

In this case, United States v. Morrison, the Institute for Justice teamed up on an amicus curiae (“friend of the court”) brief with the Cato Institute and constitutional expert Richard Epstein. In Morrison, the Court was faced with deciding if Congress had the constitutional authority to enact this provision of VAWA.

As the Institute stressed throughout its involvement in this case, the Morrison case was never about women’s rights. Rather, it was about whether there are limits to Congress’s power under the Constitution. Thankfully, the Supreme Court once again recognized that the Constitution establishes a government of limited, enumerated powers. As the readers of this newsletter know, since the New Deal, the Commerce Clause has been used as a vehicle for virtually unlimited congressional power, enabling Congress to regulate anything and everything. The Court in the 1995 Lopez decision started to rethink that attitude, and the Morrison case provides another brake on the relentless expansion of federal power.

Although the majority decision did not go as far as we had urged in placing limits on congressional authority, it recognized that the federal government is restricted from legislating in areas that the Constitution intended to leave to the states or the people.

A narrow 5-4 majority decided the Morrison case. The dissents by Justices Souter and Breyer advocate unlimited congressional power to legislate in any field of its choosing. What is perhaps most disturbing about the decision is that we are one vote away from a system whereby the federal government is no longer one of limited powers.

The case arose after Christy Brzonkala, then a freshman at Virginia Polytechnic Institute, accused two football players she had just met of raping her in a university dormitory. Five months later she brought charges with the university against Antonio Morrison and James Crawford, who sharply denied the allegations. After a grand jury refused to indict either man, Brzonkala brought suit under VAWA, despite the fact that all states provide both criminal and civil remedies for such acts.

In our brief, we urged the Court to restore the principles of limited constitutional government adopted by the Founders. The Constitution establishes a government of enumerated powers, leaving most power-including the general police power-with the states or the people. As VAWA created rights that are already recognized by all states, it was not needed. But more important, it expanded Congress’s powers beyond their constitutional limits. It was yet one more example of Congress wanting to “look tough on crime” while ignoring its limits under the Constitution.