[Congressional Record Volume 146, Number 60 (Tuesday, May 16, 2000)]
[Senate]
[Pages S3970-S3974]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SUPREME COURT DECISION IN U.S. v. MORRISON
Mr. BIDEN. Mr. President, I attended the Million Mom March with my
wife. I do not think anyone should misunderstand the significance and
consequence of so many mothers and a number of fathers giving up
Mother's Day to make an important point. These were not a bunch of wild
radicals. These were a bunch of moms from rural areas, inner cities,
and suburban areas. They were black, they were white, Hispanic, Asian
American. They were basically making a plea. As I stood there and
listened, I was reminded of a quote attributed to John Locke speaking
about someone he heard. He said:
He spoke words that wept and shed tears that spoke.
I do not know how anyone could have attended any significant portion
of that march and not felt, as John Locke felt, listening to the words
these women spoke that wept and the tears they shed that spoke volumes
about the insanity of our policy.
Irony of all ironies; the next day, on Monday, the Supreme Court
hands down a decision, not about guns but about the protection and
empowerment of women in society. Yesterday, in United States v.
Morrison, the Supreme Court struck down a provision of an act that I
spent 8 years writing and attempting to pass--six of which were in
earnest--the so-called Violence Against Women Act. There is one
provision of that act they struck down and only one provision. That is
the provision that empowered women to take up their cause in Federal
court to make the case they were a victim of sexual abuse because, and
only because, of their gender and to sue their attacker for civil
damages in Federal court; empowering women to not have to rely on the
prosecutorial system or anyone else to vindicate the wrong that had
been done to them if they can supply the proof.
As the author of that act, I must tell my colleagues that I was
disappointed by the Court's decision but, quite frankly, not surprised
by it.
I emphasize, though, the Morrison case struck down the civil rights
cause of action women have in Federal court, no other part of the act.
Nothing in the Court's decision yesterday affects the validity of any
other provision, any other program, or the need to reauthorize these
programs through my bill, the Violence Against Women Act II, which now
has 47 cosponsors.
Unfortunately, I believe the Court's ruling yesterday will have a
significant impact on Congress' ability to respond to public needs in a
way that has not been constrained since the 1930s. The Court has been
inching toward this decision and this line of reasoning in case after
case over the last several years. The Court has grown bolder and bolder
in stripping the Federal Government of the ability to make decisions on
behalf of the American people, part of the objectives of the Honorable
Chief Justice, who believes in the notion of devolution of power and
thinks that the Federal Government should have significantly less
power.
The Court's decision--and these have all been basically 5-4
decisions--in United States v. Lopez in 1995 struck down the Gun-Free
School Zones Act, a decision upon which the Court heavily relied in the
Morrison case in striking down the civil rights remedy.
In the case of Boerne v. Flores, a 1997 case, the Court struck down
the Religious Freedom Restoration Act. Again, this is not mostly about
what act they like and do not like; it is about Congress' power. Those
who thought we should not be dealing with guns were happy with the
Lopez case substantively. Those who thought we should have more
religious freedom in public places, our conservative friends--and I
happen to agree with them on that point--were disappointed when the
Supreme Court reached in and said as to section 5 of the 14th
amendment, which is the provision which says the Congress shall
determine how to enforce the 14th amendment, no, no, no, Congress is
not the one; we--the Court--are going to decide.
There, then, was another decision, the Supreme Court's watershed
decision in the Seminole Tribe of Florida v. Florida, a 1996 decision,
and the cases that followed, in which the Court limited Congress'
ability to authorize private citizens to vindicate Federal rights in
lawsuits against their States, and that included the Fair Labor
Standards Act and the Age Discrimination Act.
Putting it in simple terms, if the State of Florida discriminated
against somebody in State employment because of age in violation of the
Federal act, the Court said: Sorry, Florida has immunity. A Federal
Government cannot protect all Americans against age discrimination
because of a new and novel reading of the 11th amendment.
The Court's decision today is at peace with those rulings.
Fundamentally, this decision is about power. Who has the power, the
Court or the Congress, to determine whether or not a local activity,
such as gender-motivated violence, has a substantial impact on
interstate commerce? Yesterday the Court said it: The Court has this
power--echoes of 1920 and 1925 and 1928 and 1930, the so-called Lockner
era.
I find it particularly striking the Court acknowledged in Morrison
that in contrast to the lack of congressional findings supporting the
law struck down in Lopez, the civil rights remedy is supported by
numerous findings regarding the serious impact of gender-motivated
violence on interstate commerce. I conducted 4 years of hearings to
make that record.
We showed overwhelmingly that the loss of dollars to the economy of
women being battered and abused and losing work is billions of dollars.
We showed overwhelmingly that women make decisions about whether to
engage in a business that requires them to cross State lines based in
significant part upon the degree to which they think they can be safe,
based upon a survey of 50 State laws, and whether or not they
adequately protect women as they do men against violence.
The record is overwhelming. Nonetheless, instead of applying the rule
they had traditionally applied in determining whether Congress has the
right to be involved in what is a local matter, they came up with a new
standard.
Instead of applying the old standard of: Is there a rational basis
for Congress to find, as they did, the traditional ``rational basis
review'' to decide whether Congress' findings in this case were
rational--and I cannot conceive of how they concluded they could not
be--the Court simply disagreed with the
[[Page S3971]]
findings, marking the first occasion in more than 60 years that the
Court has rejected explicit factual findings by the Congress, supported
by a voluminous record. They, in fact, explicitly rejected the findings
that a given activity substantially affects interstate commerce.
The Court justified the abandonment of the deference to Congress by
declaring that whether particular activities sufficiently affect
interstate commerce ``is ultimately a judicial rather than a
legislative question.''
I could not disagree more fundamentally with the Court's ruling.
Quite frankly, this will affect the Violence Against Women Act less
than it is going to affect a whole lot of other things. The Supreme
Court precedents have long recognized that Congress has the power to
legislate with regard to local activities that, in the aggregate, have
a substantial impact on interstate commerce.
I personally believe Justice Souter, who wrote the principal dissent
in this case, had it right when he explained that:
[t]he fact of such a substantial effect is not an issue for
the courts in the first instance, but for the Congress, whose
institutional capacity for gathering evidence and taking
testimony far exceeds ours.
I am left wondering, where does the Court's decision leave Congress'
formerly plenary power to remove serious obstructions to interstate
commerce, whatever their source?
It is reminiscent of the Lockner era when they said, by the way, you
have those labor standards having to do with mining--mining is not
interstate commerce. Then they came along and said production is not
interstate commerce. Then they said manufacturing is not interstate
commerce. Until midway in the New Deal, with the end of the Lockner
era, they said: Woe, woe, woe; wait a minute, wait a minute.
Unfortunately, this decision yesterday reads more as a decision
written in 1930 than in the year 2000.
As Justice Souter documented so well in his dissent, the Court
appears to be returning to a type of categorical analysis of Congress'
power under the Commerce Clause that characterized the pre-New Deal
era, where, as I said, manufacturing, mining, and production were all
held to be off limits despite their obvious impact on interstate
commerce. Now it is a new standard: ``Economic activity'' versus
``noneconomic activity.''
If Congress can regulate activity with substantial effects on
interstate commerce, then I, as Justices Souter and Breyer, do not
understand what difference it makes whether the causes of those
substantial effects on interstate commerce are in and of themselves
commercial.
In any event, suffice it to say that this type of formalistic,
enclave analysis--where certain spheres of activity are held off limits
to Congress--did not work in the 1930s and will work no better in the
21st century.
Because it is impossible to develop judicially defined subject matter
categories spelling out in advance what is in Congress' Commerce Clause
power and what is out, I believe the dissenting Justices are correct
that Congress, not the courts, must remain primarily responsible for
striking the right Federal-State balance, and that the Members of
Congress are institutionally motivated to strike that balance by virtue
of the fact that we represent our States and local interests as well as
the Federal interest.
So why has the Court revived the form of analysis that so ill-served
the Nation in the years leading up to the judicial crisis of 1937?
Again, I find Justice Souter's explanation convincing: In both eras,
the Court adopted these formalistic distinctions in interpreting the
Commerce Clause in service of broader political theories shared by a
majority of the Court's members.
In the pre-New Deal era, that broader political theory was laissez
faire economics; now it is the new federalism. In both instances, the
Court has been eager to substitute its own judgment for that of the
political branches democratically elected by the people to do their
business.
Those of you who are conservatives in this Congress, who say that
you, in fact, want the democratically elected bodies making these
decisions, I suggest to you that this is one of the most activist
Courts we have had in 50 years. It is supplanting its judgment for the
democratically elected branches of the Government.
So have at it, conservatives. This judicially active Court is
supplanting their judgment for the democratically elected bodies.
Justice Stevens put it bluntly in his recent dissent in the recent
age discrimination case. He said: The Court's federalism decisions
constitute a ``judicial activism''--that is his quote, not mine--that
is ``such a radical departure from the proper role of this Court that
it should be opposed whenever an opportunity arises.''
This is one Senator who plans to keep up that opposition.
Stay tuned, folks, because what this upcoming election is about is
the future--the future--of the power of the elected branches of the
Government versus the Court which is appointed for life. This is a
conservative agenda that is being forced upon the democratically
elected bodies, as it was in the 1920s. The next President is going to
get to pick somewhere between one and three new Justices.
Mr. President, I ask unanimous consent that a speech I made on the
Supreme Court and its changing direction be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Remarks By Joseph R. Biden, Jr., to the New Hampshire Supreme Court,
Septmeber 17, 1999
Today marks the anniversary of an extraordinary event, the
212th anniversary of the birth of the Constitution of the
United States. On September 17, 1787, the Constitutional
Convention, its work complete, rose and submitted the
Constitution to the thirteen states for ratification.
Bringing together thirteen different states with diverse
cultures and established governments--some of these harking
back a hundred years--did not come easy. In 1775, at the time
of the Continental Congress, John Adams, writing to his wife,
Abigail, described: ``[f]ifty gentlemen meeting together all
strangers * * * not acquainted with each other's language,
ideas, views, designs. They are therefore jealous of each
other--fearful, timid, skittish.''
The men who attended that Constitutional Convention knew,
even then, that they had begun the greatest political
experiment in human history, producing a document that would
become an engine of change throughout the world. According to
James Madison's account, Governor Morris of Pennsylvania
stated that:
He came here as a Representative of America; he flattered
himself he came here in some degree as a Representative of
the whole human race; for the whole human race will be
affected by the proceedings of this Convention.
``This Country,'' Governor Morris continued, must be
united. If persuasion does not unite it, the sword will. * *
* The scenes of horror attending civil commotion can not be
described. * * * The stronger party will then make [traitors]
of the weaker; and the Gallows & Halter will finish the work
of the sword.
The Framers, in their vision and wisdom, did unite the
country, fashioning a government that was both federal--that
is, comprised of sovereign states--and, at the same time,
truly national in power. The Framers respected and sustained
the essential role of the states. But, at the same time, the
Framers made national law supreme, a principle enshrined in
the Supremacy Clause of the Constitution, and created a
government empowered to bind both the states and individuals,
powers denied the government under the Articles of
Confederation.
The Constitution also established a vigorous and
independent presidency--what Alexander Hamilton in the
Federalist Papers called ``energy in the executive''--by
freeing the Chief Executive from selection by the legislature
and granting the President real and meaningful powers. As
early as McCulloch v. Maryland, Chief Justice John Marshall
in 1819 recognized the ``great powers'' the national
government possessed:
to lay and collect taxes; to borrow money; to regulate
commerce; to declare and conduct a war; and to raise and
support armies and navies. The sword and the purse, all the
external relations, and no inconsiderable portion of the
industry of the nation, are entrusted to its government.
And, on this 212th anniversary of the crafting of the
Constitution--a day and age now marked by national malaise
about and distrust of our government and its institutions--it
is only fitting to reflect on how right Governor Morris was
about how the Framers' creation has transformed--and
transfixed --the human race. Under this Constitution, we
settled a vast continent--from the Atlantic to the Pacific
coasts; we mobilized millions of men to unite the nation and
end slavery, fulfilling the promise of the Constitution; we
ascended, like the mythical phoenix, from the ashes of the
Great Depression; we turned back despotism and preserved a
free Europe in two World Wars; we won the Cold War; and we
now enjoy economic and military power unrivaled across the
globe and unmatched in the history of the world. No small
achievements, these.
[[Page S3972]]
These achievements make us the envy of the world. Just last
week, I returned from a trip to six European countries,
including Kosovo, and I met with six Presidents. The
President of Bulgaria said to me:
I know of no other country that has risked the lives of its
young men and women and would spend $15 billion dollars on
behalf of a place in which it has no economic interest, no
strategic interest, and no territorial interest--only an
interest in defending human rights.
Could we have achieved these successes without vigorous
presidential leadership? We owe our position in the world to
the choices made by the Framers at the Constitutional
Convention. Imagine accomplishing what we have in the two
centuries of our brief history without a strong federal
government and a strong president.
More than our achievements, though, it is our public
institutions that other nations seek to imitate. In every
place I traveled around the world last month, every one of
those six foreign Presidents talked about how they wanted to
mimic American governmental institutions--our Congress, our
President, our courts. They do not talk about our resources;
they do not talk about the American people themselves; they
talk about our institutions. It is these public
institutions--not a common ethnicity or religion, which, of
course, we do not share--that acts as the glue that binds
this country together.
But although other nations clamor to model their
institutions after ours, our own public discourse reflects a
deep and abiding angst about and suspicion of our government.
Last November, only 38 percent of Americans voted, a 50-year
low that ranks the United States at or near the bottom of the
world's democracies in voter participation. As of 1995, voter
turnout in 14 European countries, by contrast, was above 70
percent.
And take Washington Post reporter Bob Woodward's recent
book, Shadow: Five Presidents and the Legacy of Watergate,
which New York Times columnist Frank Rich recently nicknamed
``All the Presidents Stink.'' Woodward's book puts between
two covers a cynicism about government that you can purchase
for fifty cents by picking up a daily newspaper, and for less
than that by turning on your television. A style of attack
and scandal journalism toward public officials dominates the
news media--and studies by Kathleen Hall Jamieson, Dean of
the Annenburg School of Communication and her colleague
Joseph Cappella, have shown that cynical coverage breeds
cynical voter reactions.
It produces the kinds of expectations what were well
captured by Marvin Lucas, a 59-year-old custodial supervisor
at a college in Milledgeville, Georgia. Responding to a
Washington Post-Kaiser Foundation interviewer, Mr. Lucas said
``I compare politicians with used car salesmen: say one
thing, do another.''
And the ``other thing'' that politicians do, of course, is
to feather their own nests and the nests of special interest
groups that support their reelection campaigns. That is the
dominant opinion people have of American elected officials.
If that is your starting point, it is no wonder that in 1994,
56 percent of Americans thought that government did more to
hinder their family's achieving the American dream than to
help them achieve it, while only 31 percent thought that
government helped them. (The numbers had improved by 1997,
but were still negative--47 percent to 38 percent).
Heaven knows that politicians are far from perfect, and our
own missteps and, yes, deceptions, contribute to the
country's cynical attitude. Some historians trace the
contemporary decline in faith in government to Lyndon
Johnson's 1964 Presidential campaign, where he pledged that
``no American boy will fight a foreign war on a foreign soil
if I'm elected President.'' Within a year of that statement,
Johnson had ordered massive increases in draft calls and the
military build-up for the Vietnam War. Then Watergate cut
right to the heart of our faith in elected officials.
And today, highly negative campaigning has become an art
form, as each candidate tries to tag his opponent with being
an insider, or else being a corrupt person who just hasn't
had the chance to be corrupt on the inside yet. When Majority
Leader George Mitchell was retiring from the Senate, he
remarked to Jim Lehrer on the News Hour that so long as
campaigns consist of one candidate calling his opponent a
crook and the other calling his opponent a scoundrel, is it
any wonder that Americans believe that Congress is filled
with crooks and scoundrels?
So I don't want to understate the complexity of the sources
of contemporary cynicism and distrust toward elected
officials. What worries me, though, is that this cynicism and
distrust is way out of proportion to the actual
accomplishments of the federal government, and way out of
proportion to the sincerity and honesty with which my
colleagues conduct themselves every day in doing the
country's business.
This public cynicism is not the only current raging in
American politics today, however. There is a movement among
intellectuals, historians, and political scientists to shift
the locus of political power, or to ``devolve power,'' from
the national government to the states. George Will, one of
the champions of this ``devolution of power'' movement,
explained its premise as follows:
[I]t is unwholesome that Washington, like Caesar, has grown
so great. Power should flow back to where it came from and
belongs, back to the people and their state governments, back
to state capitals * * *
This is nothing less than a fight for the heart and soul of
America. This is a fight about power. And it is a fight about
who will be left in charge.
In my view, the value of devolution of power from the
national government to the states can be overstated.
Certainly the abuse of power, whenever it occurs, must be
checked. The federal government admittedly does tend to grab
power for itself without due regard for whether its goals can
better be achieved at the local level. But the state and
local governments, in contrast, tend toward parochialism
without due regard for the national interest. Thus,
devolution of power is not per se a good thing. At whatever
level of government, it all depends how that power is used.
It cannot be that the Framers intended to hamstring the
federal government in favor of the states. If that was their
intent, why abandon the Articles of Confederation? And just
try to imagine the United States attaining its successes to
date without a strong national government and a vigorous
President. To go one step further--imagine how difficult it
will be to fortify our position in the world in the 21st
century without a powerful central government.
The current cynicism about our public institutions, it
seems to me, is also beginning to gain a foothold in the
constitutional decisions of the Supreme Court, and that is
also of concern to me, and is something I would like to spend
the next few minutes discussing with you. Now first I want to
say that today's Supreme Court is the best-informed, hardest
working Court we have ever had. In particular, I want to
commend Justice Souter, a native son of this great state of
New Hampshire, for writing several of the most scholarly and
persuasive dissents this Court has seen in recent years--
dissents that I am confident will prove prophetic.
Yet the Supreme Court of today embodies both strands of the
phenomenon now plaguing our American culture--both the public
cynicism about, and the intellectual disdain for, our
national government. The Court is sharply critical of the
political branches of our federal government, accusing them
in case after case this decade of arrogating power to
themselves at the expense of state governments. But in
assuming the role of ``Chief Protector'' of the allocation of
power between the federal government and the states, the
Supreme Court of late has regrettably adopted a court-
centered view of the scope of federal power. In doing so, it
has arrogated to itself a responsibility that more properly
befits the political branches.
In my opinion, we have in the past eight years or so begun
to see a series of opinions in which the Supreme Court has
become bolder and bolder in stripping the federal government
of the ability to make decisions on behalf of the American
people. So far, the immediate effects of these decisions are
real, but relatively modest. They may represent marginal
readjustments in the allocation of power under
the Constitution. On the other hand, if I am right and the
jurisprudence is being driven by an oversized sense of
distrust and cynicism toward democratically elected
government--and especially toward the federal government--
the decisions could constitute the beginnings of a sea
change that could take us quite literally back to a style
of judicial imperialism unseen in this country since the
early 1930s.
The trio of cases decided by the Supreme Court at the very
end of the last Term are a prime example of this court-
centered view of federal power. For example, in its 5-4
decision in Florida Prepaid Postsecondary Education Expense
Board v. College Savings Bank, the Court held that Congress
had no power to subject the states to private patent
infringement suits in federal court because in the Court's
view, the statute was not ``appropriate'' legislation to
enforce the Fourteenth Amendment. The Court said no to patent
infringement cases against state entities because the Court--
not Congress--decided that legislation remedying patent
infringement by state entities was not really necessary. In
so deciding, the Court made a quintessentially legislative
judgment.
To the same effect was the companion case, College Savings
Bank v. Florida Prepaid Postsecondary Education Expense
Board, in which the Court dismissed out of hand Congress'
effort to hold state entities accountable to private parties
for misrepresenting the states' commercial products in
violation of federal trademark law, because the Court decided
that the statute did not protect ``property rights'' within
the meaning of the Fourteenth Amendment.
The two Florida Prepaid decisions unfortunately flow
directly from City of Boerne v. Flores, in which the Court in
1997 struck down the Religious Freedom Restoration Act as
also exceeding Congress' authority under section 5 of the
Fourteenth Amendment. In ruling that Congress had gone too
far in protecting religious liberty, the Court in essence
held that Congress had not done its homework to the Court's
satisfaction. The Court attacked the legislative record as
lacking what it considered to be sufficient modern instances
of religious bigotry and found that the statute was ``out of
proportion'' to its supposed remedial or preventive objects.
Again, the Court in effect decided that a law simply was not
really necessary.
Implicit in the Court's obvious willingness in Boerne to
second-guess Congress' legislative judgment in the name of
protecting
[[Page S3973]]
state governments is the notion that it is for the Supreme
Court, and not Congress, to specify the meaning of the
provisions of the Constitution, even when Congress claims to
enforce the individual liberties protected by the Fourteenth
Amendment.
It is as if the Court has forgotten that the only
institution mentioned in section 5 of the Fourteenth
Amendment is Congress. The text of section 5 is clear and
simple: ``The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.'' It
was for Congress, not the courts, to be the primary guarantor
of individual rights as against oppression by state
authorities, and for Congress, not the courts, to assess
whether and what legislation is needed for that purpose.
Remember that the Fourteenth Amendment was adopted in the
long shadow of the Dred Scott decision. The court-centered
view the Court has since taken of that amendment is directly
at odds with the universal sentiment at the time of its
adoption that it was our federal legislature, not the courts,
that could best be trusted to police the states.
What seems to lie at the heart of the headline-grabbing
cases of the past few terms is the Court's willingness to
disregard the views of Congress in favor of its own. It is as
if the Court believes that it has a better sense of the
economic and other real-world implications of the laws
Congress passes than do those elected by the people to serve
in that branch.
The Court's recent decisions contain troubling echoes from
the New Deal era, when the Supreme Court was swift to
substitute its own judgment of what was desirable economic
legislation for that of Congress and the President. Here is
just one illustration from that bygone era: In Railroad
Retirement Board v. Alton Railroad Co., the Court in 1935
struck down the Railroad Retirement Act as unconstitutional,
in part because the Court concluded that it was not a valid
regulation of interstate commerce. Congress enacted the
statute, which established a compulsory retirement and
pension system for all railroad carriers, to promote
``efficiency and safety in interstate transportation'' both
by reducing the aging population of employees and by
improving the employees' sense of security and morale. In its
opinion, the Court stated, however: ``We cannot agree that
these ends * * * encourage loyalty and continuity of
service.'' We cannot agree. That is a breathtaking
statement by a court which had abandoned its proper role.
We cannot agree?
And in denying Congress what Justice Breyer in dissent has
called ``necessary legislative flexibility,'' such as to
create, for example, ``a decentralized system of individual
private remedies,'' the Court has returned to the kind of
court-centered conception of federal power that typified not
only the New Deal era, but the Lochner era as well. As
Justice Souter predicted in his Alden v. Maine dissent
lamenting the Court's sovereign immunity decisions:
The resemblance of today's state sovereign immunity to the
Lochner era's industrial due process is striking. The Court
began this century by imputing immutable constitutional
status to a conception of economic self-reliance that was
never true to industrial life and grew insistently fictional
with the years, and the Court has chosen to close the century
by conferring like status on a conception of state sovereign
immunity that is true neither to history nor to the structure
of the Constitution. I expect the Court's latest essay into
immunity doctrine will prove the equal of its earlier
experiment in laissez-faire, the one being as unrealistic as
the other, as indefensible, and probably as fleeting.
(Justice Souter, I sincerely hope that you are correct when
you said ``probably as fleeting'' because if you are wrong,
and the Court's pronouncements endure, then I am afraid that
the country is in bigger trouble than I thought.)
Don't misunderstand me. I do not mean for a second to
disparage the role of the states. The states play a critical
part in warding off tyranny by the national government and in
performing all the fundamental functions with which the
governments closest to the people are charged. Certainly
those of you who live in this great state of New Hampshire--
whose motto is ``Live Free or Die''--understand that better
than anyone else. As James Madison wrote in the Federalist
Papers:
The powers reserved to the several States will extend to
all the objects which, in the ordinary course of affairs,
concern the lives, liberties, and properties of the people,
and the internal order, improvement, and prosperity of the
State.
But we should think long and hard before allowing one
branch of our government--the federal judiciary--to cripple
its co-equal branches, the political branches, of government.
To do so is to put in jeopardy all that we have accomplished
in our brief history and all that we may do in the future.
I must tell you that I am gravely concerned about the
direction the Court is headed. I have a particular stake in
this which I will confess now and that is the fate of the
civil rights remedy created by the Violence Against Women Act
of 1994, which I wrote. Earlier this year, the U.S. Court of
Appeals for the Fourth Circuit invalidated the civil rights
remedy in Brzonkala v. Virginia Polytechnic Institute & State
University, and the case may come before the Supreme Court in
the coming Term if the Court grants review.
The civil rights remedy creates a new federal cause of
action allowing a victim of gender-motivated violence to sue
her attacker in court. I believe--indeed, I know--that
violence against women restricts the participation of women
in the national economy, inhibits their production and
consumption of goods and services in interstate commerce, and
obstructs their ability to work and travel freely. In short,
violence against women was, and is, a national problem of
epic proportions that substantially and adversely affects
interstate commerce. A massive legislative record compiled
after four years of fact-finding hearings in Congress
irrefutably confirms the impact of violence against women on
the national economy and interstate commerce.
When we enacted the Violence Against Women Act civil rights
remedy in 1994, the Senate Judiciary Committee explicitly
found that the provision satisfied the ``modest threshold''
required by the Commerce Clause, and we in Congress were
confident of the statute's constitutionality. The civil
rights remedy quite appropriately attempted to remove an
obstruction to interstate commerce, much as the Civil Rights
Act of 1964 barred race discrimination in hotels and
restaurants because such discrimination, as the Court put it
in upholding the statute, ``imposed `an artificial
restriction on the market.' ''
But less than a year after we enacted the Violence Against
Women Act and its civil rights remedy, the Supreme Court
decided United States v. Lopez and invalidated, as beyond
Congress' Commerce Clause authority, the Gun-Free School
Zones Act, which prohibited the possession of a firearm
within 1000 feet of a school. In the wake of Lopez, I find
myself asking: Will this Court accept the congressional
judgment that violence against women adversely affects the
national economy? Or will this Court second-guess the remedy
we chose to address that effect?
Ironically, the Court may find itself the champion of
states' rights that the states do not even want. Just as with
the Patent Remedy Act, where no state testified in favor of
immunity from private patent infringement actions, the vast
majority of states strongly favor the Violence Against Women
Act civil rights remedy. Forty-one state attorneys general
wrote to Congress in favor of the statute, including the
civil rights remedy, before its enactment. Only a few weeks
ago, 33 Attorneys General submitted an amicus brief to the
Supreme Court asking the Court to grant the petition for
certiorari and uphold the statute because the states ``agree
with Congress that gender-based violence substantially
affects interstate commerce and the States cannot address
this problem adequately by themselves.''
I also fear that the Supreme Court's readiness to disregard
the people's judgment has served as a clarion call to the
federal courts to usher in what Judge Douglas Ginsburg of the
U.S. Court of Appeals for the D.C. Circuit has called the
``Constitution in Exile.'' According to Judge Ginsburg, the
doctrine of enumerated powers, the nondelegation doctrine,
the Necessary and Proper, Contracts, Takings, and Commerce
clauses, had become ``ancient exiles, banished for standing
in opposition to unlimited government.''
In service of this ``Constitution-in-Exile,'' the lower
courts have begun to read the Constitution in a revolutionary
way. Thus, a district court in Alabama decided, remarkably,
that the Superfund amendments were unconstitutional because
they did not regulate interstate commerce, a decision later
reversed on appeal. Similarly, the Fourth Circuit's ruling
striking down the civil rights remedy of the Violence Against
Women Act transforms Lopez v. United States from an important
reminder that Congress' commerce power is not without limits,
into what is arguably the most momentous decision of the last
fifty years regarding the scope of federal power.
That same court of appeals has tightened the noose in yet
another way. The Fourth Circuit ruled last year in Condon v.
Reno, a case now under review by the Supreme Court, that
Congress may not pass a law when that law applies only to the
states, and not also to private individuals. In other words,
Congress may not require the states to comply with federal
law if the law does not also affect private individuals.
The jury is still out on whether the Supreme Court will let
the other shoe drop and sustain these additional restrictions
on federal power, but the Court seems primed and poised to do
so. Much hangs in the balance. If your eyes glaze over when I
speak about Congress authorizing private actions for patent
infringement or trademark violations by state entities, then
think about the Fair Labor Standards Act, which the Court
held last June in Alden v. Maine could not be enforced
against noncompliant states by state employees seeking
backpay. How far we have come from the Framers' vision of a
federal government strong enough and flexible enough to do
the people's business. As Justice Souter observed in his
dissent in Alden v. Maine:
Had the question been posed, state sovereign immunity could
not have been thought to shield a State from suit under
federal law on a subject committed to national jurisdiction
by Article I of the Constitution.
Other cases could potentially serve as a resounding wake-up
call as to the extent to which the federal government's hands
have been tied in addressing problems of national import. In
the coming Term, the Court will take up the question whether
the Congress had the power in the Age Discrimination in
[[Page S3974]]
Employment Act to authorize private law suits against state
violators. A case raising a similar issue with respect to the
Americans with Disabilities Act is sure to follow. And if the
Court says no, private individuals who suffer age,
disability, and other forms of discrimination at the hands
of state actors will have few means at their disposal to
enforce their rights under federal law, and the federal
government will rarely be able to help them.
The Court left open the possibility that the federal
government could sue noncompliant states, but if you think
that it is realistic for the federal government to come to
the rescue by going into court on a regular basis to
vindicate the federal rights of private individuals, think
again. I do not see a massive expansion of the federal
litigating corps happening any time soon. Nor do I see how
that could be anything but self-defeating if the goal is to
minimize the federal intrusion into state government affairs.
By elevating the states' sovereign immunity to an immutable
principle of constitutional law, the Court, as Justice Breyer
recognized in his College Savings Bank dissent: ``makes it
more difficult for Congress to decentralize governmental
decisionmaking and to provide individual citizens, or local
communities, with a variety of enforcement powers. By
diminishing congressional flexibility to do so, the Court
makes it somewhat more difficult to satisfy modern
federalism's more important liberty-protecting needs. In this
sense, it is counterproductive.''
Now don't get me wrong. Sometimes the federal and state
governments do not get their relationship quite right. We do
not have infallible institutions. But when the Supreme Court
restricts the flexibility of Congress to decide how best to
address national problems within the scope of its enumerated
powers, the Court truncates the learning process otherwise
underway in our political institutions--a result a
conservative court--conservative with a small ``c''--should
hesitate to effect.
The Court has imposed by fiat limitations on the exercise
of federal power that might very well have come about without
the Court's interference. In other words, the Court in Garcia
v. San Antonio Metropolitan Transit Authority got it right
when, in 1985, it overruled National League of Cities v.
Usery, a case decided a decade earlier, that had restricted
the federal government's power to regulate the states ``in
areas of traditional governmental functions.'' Instead, the
Court announced in Garcia that the political process, not the
Court, should serve as the principal check on federal
overreaching. I must disagree with the notion that leaving it
to Congress and the President is like leaving the fox to
guard the chicken coop, or as Justice O'Connor put it in her
dissent in Garcia, like leaving the ``essentials of state
sovereignty'' to Congress' ``underdeveloped capacity for
self-restraint.''
The Violence Against Women Act civil rights remedy is a
good example of Congress' developing capacity for self-
restraint. At the outset, those most concerned about domestic
violence and rape wanted a statute with a broad sweep, and so
we started out by introducing a provision in 1990 that
arguably would have federalized a significant portion of
state laws against domestic violence and rape. But the
Conference of Chief Justices of State Supreme Courts, the
Judicial Conference of the United States--and Chief Justice
Rehnquist, in particular--pointed out to Congress, while the
bill was under consideration, that the civil rights provision
might significantly interfere with the states' handling of
domestic relations and rape cases, while at the same time,
overburdening the federal courts. The federal and state
judiciaries raised the concern, we examined it, and we
decided that they were right. Congress then carefully
redrafted the civil rights remedy so that it would not have
that effect.
There are other recent examples--such as the Unfunded
Mandates Act--that came about because the states complained
to Congress that we were forcing them to use their tax
dollars to do whatever we mandated in Washington. The states
staged a mini-rebellion. So Congress wrote a new law
requiring federal restraint. And for that, I must give my
Republican colleagues their due.
But when the Supreme Court plays traffic cop on the streets
of federalism, the Court does our country a disservice by
cutting this national political dialogue short. We are
already reaching many of the conclusions the Court has now
cemented into the Constitution. James Madison wrote in the
Federalist Papers that the new federal government would be
sufficiently national and local in spirit as ``to be
disinclined to invade the rights of the individual States, or
the prerogatives of their governments.'' Our political
institutions can be trusted. The Framers understood this.
In short, the disconnect between our public and cultural
perceptions of our institutions and reality is stunning. Keep
in mind that the rest of the world is struggling to
emulate our institutions because they believe it is our
institutions that separate us from other nations--indeed,
from other democracies--and are the bedrock upon which our
successes are founded.
Yet our public discourse, our legal opinions, our very
culture, are compelling us to overlook or scorn our own
accomplishments. We are losing, as a nation, the communal
notion that our strength lies in our institutions.
Relentlessly accentuating the negative when it comes to our
political institutions, however, eclipses our considerable
successes. And this predilection to distrust the political
branches now seems to be shared equally by the judicial
branch, not only when it comes time to decide how to
distribute power between the federal government and the
states, but also when it comes to making a judgment of what
is in the best interests of Americans.
I talked to you tonight about cynicism, devolution of
power, and how we got here. In my view, all of that can be
overcome by the right leadership, the right people in power,
who will recharge the public's imagination and confidence.
The public mood can be transformed in an election, a single
cycle. Maybe it will take a generation. But it can be
changed. Elected officials who cater too much or too little
to state interests can be voted out of office. But if the
Supreme Court chisels into stone new constitutional
restrictions on federal power, new hoops through which
Congress must leap, where will we be then? You cannot go to
the polls to undo a constitutional ruling of the Supreme
Court. There is no further appeal--no appeal to a higher
court, no appeal to the voters. Nothing short of a new
constitutional convention or an amendment to the
Constitution--and you know how easy that is--or will do.
James Madison was right: trust the political process. ``WE
CANNOT AGREE''? Please.
Let me conclude by making the following simple point: if,
at the federal level, we are such a failure institutionally,
why does the rest of the world look to us to copy our
supposed frailties? If we are such a failure--with our last
six Presidents supposedly flops--how is that our incomes are
actually growing, crime is going down, drug use is down, and
our economy is in better shape than that of any nation in the
history of the world? How did we produce a nation willing and
able, as the President of Bulgaria pointed out, to spend
billions of dollars and risk the lives of its men and women
to advance the cause of human rights? Did it happen by
chance? Did it happen by accident? It happened as a direct
result of our unique political institutions.
The Framers set out to create a centralized government
robust enough to deal with national problems, but with built-
in guarantees that it be respectful of, and sensitive to,
local concerns. There is an inherent tension in the document.
But look at the sweep of history: as the balance of power has
shifted back and forth between the national government and
the states, our resilient political branches have adjusted
and responded. The rest of the world gets it.
We must remember that politics--and politicians--are not
the enemy. The Constitutional Convention was composed of men
who were regarded as gifted even in their own day. As the
French charge d'affaires wrote to his government as the
Convention convened:
If all the delegates named for this Convention at
Philadelphia are present, we will never have seen, even in
Europe, an assembly more respectable for the talents,
knowledge, disinterestedness, and patriotism of those who
compose it.
Above all else, these men were politicians. And I am not
suggesting by this that our government today boasts the likes
of a Jefferson or a Madison, but I am suggesting that we have
fine and decent men and women with significant capabilities
who choose public service. And some of you are among them.
The hostility we see from the Supreme Court toward the
elected branches of government is the same suspicion we see
in the eyes of the ordinary person on the street.
``Politics'' has become a dirty word. But as those of you
here who live in this state of strong local community
governments and town hall meetings, know better than anyone,
``politics'' is fundamental to how we govern ourselves in a
democracy. At the end of the day, politics is the only way a
community can govern itself and realize its goals without the
sword.
So I stand before you today, on this 212th anniversary of
the completion of the work of the Constitutional Convention,
ready and willing to defend politics--even national politics.
It was what those 50 gentlemen, all strangers, who met 212
years ago defended and vindicated. And it is what, in the
end, has made and will continue to make us secure and strong.
____________________