The disturbing failure to prosecute alleged rapists in Maryville, Missouri, represents an all-too-common failure of American legal systems. In The Nation, Jill Filipovic has a must-read article highlighting another part of the problem: the Supreme Court. The Court's conservative justices have taken a federal remedy away from sexual-assault victims, in a case that represents a pattern in the Republican war on civil-rights enforcement.
As Filipovic details, U.S. v. Morrison resulted from a case in which Virginia Tech student Christy Brzonkala was allegedly raped by two members of the school's football team, one of whom for all intents and purposes conceded that he had nonconsensual sex with Brzonkala. One alleged assaulter was acquitted entirely by the school's disciplinary process. Morrison had a one-year suspension for sexual assault lifted, and then had a one-year suspension under Virginia Tech's Abusive Conduct policy (after the alleged assault he had told Brzonkala "you better not have any fucking diseases") overturned by the university's administration. After the state failed to obtain an indictment against Morrison, she sued him under a provision of the federal Violence Against Women Act. This provision was struck down by a 5-4 majority of the Supreme Court in Morrison.
I agree entirely with Filipovic's detailed argument about why the Supreme Court's holding that Section 13981 of the VAWA exceeded the power of Congress to regulate interstate commerce is wrong. But there is another element of the case that is worth revisiting in light of the Supreme Court's recent dismantling of the Voting Rights Act. Section 5 of the 14th Amendment gives Congress the power to enforce its provisions, including the equal protection clause. It is well-settled that gender discrimination merits heightened scrutiny under the 14th Amendment. Even if one assumes arguendo that the civil-remedy provision of the VAWA was not a valid exercise of the commerce power, it should have been upheld under the authority of Congress to enforce the 14th Amendment.
What is most striking about Rehnquist's majority opinion in Morrison is that his disparagement of the power of Congress to enforce the 14th Amendment relies largely on two post-Reconstruction decisions that should as discredited as Dred Scott v. Sanford and Korematsu v. United States.
The first cited case, United States v. Cruikshank, denied the federal government's ability to prosecute the perpetrators of the massacre of more than 100 African-Americans in Colfax, Loiusiana. The idea that the Supreme Court in 2000 would blandly cite a notorious and poorly reasoned opinion giving the Klan the green light to use terrorism to end democracy in the states of the former Confederacy defies comprehension. (It's worth noting that when it comes to the 2nd Amendment holdings of Cruikshank, the Supreme Court's conservatives properly did not consider themselves bound by this discredited precedent.)
Central to Morrison's holding was the Civil Rights Cases of 1883, in which the Supreme Court struck down provisions of the Civil Rights Act of 1875 that closely resembled later provisions in the Civil Rights Act of 1964. The Court argued that because Section 1 of the 14th Amendment applied to action by states, Section 5 did not allow Congress to regulate the conduct of private individuals. The result of this decision, as John Marhsall Harlan argued in his dissenting opinion, is that "the substance and spirit of the [Civil War amendments] have been sacrificed by a subtle and ingenious verbal criticism." The obvious problem with the majority's logic is that state inaction was a greater threat to the equality of freed slaves than state action, so to construe Congress's enforcement power that narrowly defeats the purpose of the amendment. As Gerard Magliocca points out in his fine new biography of John Bingham, the 14th Amendment's primary framer "rejected the idea that there was a rigid 'state action' requirement in the Fourteenth Amendment." The congressional Republicans who framed the Civil War Amendments were well aware that Congressional action against private individuals would be necessary to secure the objectives of the 14th Amendment. The case is anachronism that should no longer be considered good law.
The failure of the state of Virginia to prosecute the alleged rapist of Christy Brzonkala, like the failure so far of Missouri to prosecute the alleged rapist of Daisy Crawford, is precisely the kind of state inaction Section 5 of the 14th Amendment was designed to empower Congress to address. Both cases illustrate the importance of national action, as parochial interests (the Viriginia Tech football team, local political connections) trumped the security and dignity of women within the state. The Rehnquist Court, however, invented an additional limitation on Congress's authority, arguing that Congress could act to address gender discrimination only if the legislation is "congruent and proportional" to the alleged constitutional violation.
Leaving aside that the mountain of data presented by Congress in passing the VAWA left little doubt that its actions were proportional to the constitutional violations it identified, this test simply has no place in the interpretation of the Civil War Amendments. Congress is explicitly authorized to enforce them. Unless enforcing legislation violates individual rights explicitly guaranteed by the Constitution, the Court should defer to Congress's judgment about what legislation is necessary to enforce the amendments unless there is simply no rational relationship between the legislation and its proposed end.
The Supreme Court's decision earlier this year to strike down Section 4 of the Civil Rights Act shares this tendency of inventing extraconstitutional limitations on the authority of Congress to protect civil rights. Morrison, at least, explicitly singled out Section 4 as an enforcement of the Civil War amendments that was appropriate. Chief Justice Roberts's majority opinion in Shelby County doesn't even cite Morrison or the "congruence and proportionality" test: the opinion is in such risible shambles that it doesn't bother explaining what standard is being used to evaluate congressional authority under the 15th Amendment at all. The only relevant limitation on Congress's authority to enforce the 15th Amendment cited by the Court is an alleged "equal sovereignty of the states" requirement not linked to any specific constitutional provision. To accept the Roberts Court's theory, one would have to accept that the Civil War Amendments were intended to implicitly enact the proto-Confederate theory of state sovereignty asserted by the Court in Dred Scott, a decision held in such contempt by the Reconstruction Congress that its other holdings were overturned by not one but two constitutional amendments. The idea is so absurd that to restate it is to refute it.
In civics textbooks, the Supreme Court protects minority rights against the encroachment of congressional majorities. Bare majorities of the Roberts and Rehnquist Courts, conversely, have repeatedly acted to deny Congress's ability to protect the civil rights of disadvantaged groups, generally based on states' "rights" that are found not in the Constitution but in the imagination of the justices. Democratic administrations need to continue to nominate justices who will allow Congress to fully exercise its explicit authority to protect civil rights.