The U.S. Supreme Court threw out a law today that let rape victims sue their attackers in federal court, saying Congress wrongly trampled on an area of state authority. It's about time we had some common sense from the judiciary in this country. The 5-4 ruling in a Virginia case invalidated a key provision of the 1994 “Violence Against Women Act” and followed the court's recent trend of expanding states' rights at the expense of the federal government.

The key point here is that, as in so many recent cases, the decision was 5-4. That means that one appointment to the Supreme Court in the next few years could tip the balance the other way. If you follow the Court, you already know who voted which way. The liberals who want to amalgamate as much power as possible in the federal government, voted to let this woman sue the people she says attacked her. (There is still a lot of doubt as to her complicity in this college dorm rape, since she willingly admits that she was severely loaded at the time of the attack, and that she did go to the guy's room willingly.)

Regardless, here are the judges who always vote for more federal power: David H. Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer. Here are the judges with some common sense and an ability to read the Constitution: Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Chief Justice William H. Rehnquist.

Here is what Rehnquist had to say about the case: "Petitioner Brzonkala's complaint alleges that she was the victim of a brutal assault. If the allegations here are true, no civilized system of justice could fail to provide her a remedy. But under our federal system that remedy must be provided by the commonwealth of Virginia, and not by the United States."

God, it's good to hear someone with common sense. The justices rejected arguments by Brzonkala's lawyer and the Clinton administration (funny how they always get involved in these matters, eh?) that the law was needed because states are not doing enough to protect rape victims, and because gender-based violence restricts women's choices in jobs and travel. That’s how they try and fit it in with Amendment XIV. Obviously, quite a stretch, I’d say.

That argument "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," Rehnquist said. "Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence."

The next President will probably appoint at least 2 new judges.

My understanding of the opinion is that it voided that provision of VAWA because there was no substantial nexus to interstate commerce (required by the Constitution in order for the federal government to regulate something). While, in my opinion, the decision is correct, there may be a debate as to whether violence against women affects interstate commerce.

Note that this does not mean that she cannot sue her just means that she has to do it under state law.

Incidentally, you cannot say that O'Connor, Scalia, Thomas and Rehnquist always vote the same way, or for that matter always get it right. While they are certainly the most conservative, they regularly disagree with one another, and their decisions are not always consistent. Except for Scalia--who is consistently a little frightening (though often correct).

The States' Rights thing is a major concern. The popular orthodoxy nowadays is all in favor of States' Rights, but you have to bear in mind the fact that the same people who are saying this, are also saying that violent overthrow of the government is just good clean fun. Well, regardless of Thomas Jefferson's offhand remarks on the subject, the Constitution has some things to say about violent overthrow of the government and they're mostly pretty negative. We have stiff penalties for treason, last I heard. Are they unconstitutional? Is the supreme law of the land the Constitution, or the words of the prophet Jefferson? People get those two a little bit mixed up. Jefferson wasn't the only hand in the pot, and his pithy epigrams are not what was ratified by the states. Just because all the guys you hang out with at the bar (or in the bunker) are fond of a particular fashionable interpretation of the Constitution does not make it reasonable or even sane. Fashions in thought change. This is why the justices serve for life: To inject a little stability.

The Constitution replaced the Articles of Confederation because the Articles of Confederation (which we are fortunate enough to have noded in their entirety) sucked. They didn't work. They didn't provide for a central government sufficiently strong to keep the nation intact, to defend against our enemies, or to do damn-all else. It was a mess, and that's why they junked the first attempt within a decade of establishing it.

And the relevance of Amendment XIV hardly strikes me as a "stretch" at all; not having read the entirety of Justice Rehnquist's opinion, I can't get real definitive here, but it sure looks to me as if Amendment XIV is saying that when the states can't be bothered to protect the rights of citizens, the federal government has a legitimate excuse for getting involved. This is not at all far-fetched given the wording of that Amendment. The exact wording of the Violence Against Women Act and of Amendment XIV may boil down to the VAWA being unconstitutional, but there's no flashing sign in plain view which makes it obvious.

Finally, off on a bit of a tangent: The "complicity" thing is genuinely bizarre. It may be stupid to get drunk and go into somebody's room, but that hardly justifies criminal assault. If I walk in a bad neighborhood after dark, I may be a goddamn idiot for going there, but I still get to press charges if I get mugged. A crime is a crime, regardless of whether the victim should have had sense enough to avoid the perpetrator. The question of whether the victim deserves sympathy (when I got mugged in the above circumstances, I got and deserved none) is entirely unrelated to whether or not the attacker should be punished. "Why did you mug that guy?" "Everybody else was doing it, your honor." "Hm, so they were, so they were. Well, son, you're free to go."

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