States’ Rights Victory
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GWEN IFILL: Now, with more on the impact of today’s state’s rights ruling, we’re joined by two constitutional law professors: Michael McConnell of the University of Utah, and Catharine MacKinnon of the University of Michigan and the University of Chicago.
Catharine MacKinnon, does the court have a correct interpretation when they say in your view that Congress can’t really act on this?
CATHARINE MacKINNON, University of Michigan School of Law: Well, I disagree with their interpretation, and as the dissent showed, there’s substantial support for Congress having power to pass this law. They can pass it when there’s a substantial impact on interstate commerce. There was overwhelming evidence of that here, and also to give people equal protection of the law when the states aren’t doing it. And the evidence there was absolutely overwhelming. Indeed the states themselves agreed with it. So, you know, this was close. There’s a very, very strong case on the other side.
GWEN IFILL: Michael McConnell, your view?
MICHAEL McCONNELL, University of Utah School of Law: Well, I think this was an expected decision. I think it was largely a pretty straightforward and commonsensical interpretation of the constitution. This is, of course, a very popular law, and no one opposes effective legal protection against violence against women, but what was at stake here is more fundamental structural principle of our government: Not all power is vested in Washington, that in our system, a great deal of authority and including some of the most important laws that we live under are left to the states to pass and to administer. And this was, as I say, I think a pretty straightforward interpretation of those limits.
Congress has the power to regulate interstate commerce. That’s a very important power and a very large power. But this statute was directed at something that is neither interstate nor commerce. And I really don’t see how the court had much of a — of an option. It simply went beyond Congress’s authority.
GWEN IFILL: So, Professor McConnell, what you’re saying it’s not up to Congress to step in when the states or if the states are not doing their job?
MICHAEL McCONNELL: The Constitution doesn’t give Congress the power simply to step in whenever it thinks states are not solving a problem. It gives Congress the power to step in to regulate interstate commerce, and that’s the question before the court.
GWEN IFILL: Professor MacKinnon, part of the central argument here was that gender violence was having a direct affect on the national economy. Do you agree with that? I think you agree with that, and could you explain to me what that would mean, how you would prove such a thing.
CATHARINE MacKINNON: Well it was proven in Congress when the legislation was passed. There’s a massive amount of evidence that when you’re being beaten and violated and, in fact, tortured and nothing is being done about it by the states in which you live, not through the police, not through the courts, that has a bad effect on your ability to travel to make a living, to go to work to make a living, to stay at work to make a living, to stay off welfare. It has a huge economic affect. It’s substantial. It was direct, and it was proven. So, you know, there really is absolutely no question about that impact.
GWEN IFILL: Excuse me. You heard Jan Crawford Greenburg say a moment ago that during the arguments one of the arguments was if they took this case and agreed with the proponents that they would open the door to all kinds of other actions, second-guessing the states in all kinds of other cases like child support and alimony.
CATHARINE MacKINNON: Well, those, first of all, don’t — you would have to first make a case that was as strong as this one. And it was a very, very strong case. Secondly, they don’t raise in precisely the same way the same issues under the 14th Amendment. It may be that that case could be made. If it could, possibly something should be done about it. But it hasn’t been.
You know, what needs to be kept in mind here is that sex-based violence does deprive women of equality in society. It’s deprived them of equal protection under state law. And what this federal remedy was for was to give women in every state in the nation access to both federal and state courts. They could have brought it in either one — to stop that violence against them.
As I said, the states were for it. The idea that states’ rights are somehow being violated here isn’t correct. Not only did the states themselves not think they were, but this would have continued to allow states to do everything and anything they want to do and can do to address violence against women and only would have given women themselves an additional civil remedy that they could pursue on their own.
GWEN IFILL: Professor McConnell, that’s an interesting point. Actually 36 states did sign on in support of this law. Is this a broader issue beyond just the question of gender violence, this whole question of states’ rights in this case?
MICHAEL McCONNELL: It certainly is. We don’t judge the constitutionality of statutes by whether state attorneys general, who are after all just a different species of politicians, sign briefs supporting the law. The question in this case was whether this was a law regulating interstate commerce. I think the court correctly held that it wasn’t. Now, of course violence against women effects — has various economic effects. There’s no question about that. All violence and all crime have very substantial economic effects. But if that’s the argument here, then that means that the entire criminal law could be made a matter of federal concern.
And that is simply not the Constitution that we have and not the system that we have. There was no showing here that violence against women had any more of an effect on the economy than any other slice of the problem of violence crime. In fact, men suffer from violent crime at much higher rates than women do. Seventy-five percent of all homicide victims are male.
Two-thirds of robbery and assault victims are male. Men are 2.5 times more likely to be victim of violent assault. And if you look at the aspects of crime that probably have the greatest effect on the economy, it’s even more extreme. Men suffer over 83 percent of all workplace homicide. They’re more likely to be victimized traveling than women —
GWEN IFILL: I’m trying not to reargue the case but in a broader sense I wonder what Congress now has to do in this. Congress has been told in 1995 in the Gun-Free School Zone Act which was set aside by the court as well as now that Congress’s role should be scaled back. What does Congress do now? Let me start with Professor MacKinnon.
CATHARINE MacKINNON: Well, Congress could take some shorter steps here, but it strikes me that if any further evidence were needed of the need for a federal equal rights amendment to the Constitution, this ought to provide it. In addition, states that want to do something further about violence against women are in a position like Illinois recently has done to introduce and pass their own Violence Against Women Act. Congress can, of course, work with additional hate crimes laws that it has and work with a New Violence Against Women Act in an attempt to give women the rights that they need and some men too.
GWEN IFILL: Is the burden now to change this, professor McConnell, on the states rather than on the federal government, to fill in any gaps that might exist?
MICHAEL McCONNELL: As it always has been and still is, the principal job of fighting crime and violent crime in this country is in the states. I am all in favor of it and I think most Americans are in favor as effective enforcement of laws against violent crime as we can possibly have. There’s simply no reason to believe that this particular slice of the violent crime problem belongs to the federal government instead of the states.
CATHARINE MacKINNON: We look forward to the support of all those people in every state in the union passing their own Violence Against Women Act.
MICHAEL McCONNELL: Kitty, I don’t think you’ll find that there’s any political opposition to effective anti-crime measures in this country. This is really not a very controversial statute on the merits. Everybody is in favor of making this sort of thing, this sort of activity criminal and of enforcing it effectively.
GWEN IFILL: Would you agree that overall this court is moving more and more towards taking power away from Congress and giving it to the states, Mr. McConnell?
MICHAEL McCONNELL: Actually, I think that the court is enforcing only in the most modest restriction. Essentially what the court is saying is that in that exceedingly unusual case where Congress is regulating something that is non-economic and not interstate that it is overstepping its bounds. That doesn’t happen very often. In fact, I can think of very few statutes that were likely to be challenged as a result of this decision.
GWEN IFILL: Catharine MacKinnon, a final word on what the eventual — where Congress — where the court ends up with this in trying to scale back Congress’s rules over state rights — I didn’t say that well. I think you know where I’m going.
CATHARINE MacKINNON: Well, states’ rights has long been recognized as a fig leaf for racism in this country. What I think we’ve seen today is its employment as a fig leaf for sexism. It’s up to all branches of the government to attempt to get women equal protection of the law which so far we do not yet have.
GWEN IFILL: Catharine MacKinnon, Michael McConnell, thank you both very much.