May 31, 2000
The federal government's insatiable demand for more power was
slowed down by the Supreme Court this month. In United States v.
Morrison, the Court just said no and properly invalidated a key
provision in the 1994 Violence Against Women Act (VAWA).
At issue was whether the federal government can regulate aspects
of marriage and domestic relations, which have always been within the
exclusive domain of the states. Radical feminists and their allies in
the media sought to transfer this power to the federal level, where
they can more easily apply political pressure.
Such a fundamental transfer in power from the states to the
federal government should require a constitutional amendment. But
after Clinton won the Presidency and control of Congress in 1992, those
seeking federal control over domestic relations tried another approach.
Senator Joe Biden (D-DE) included in the VAWA law a little-noticed
provision to effectively undermine local control over domestic issues.
He piggybacked on media sensationalism about the 1991 Navy Tailhook
That provision, Section 13981, gave federal courts unprecedented
power over domestic relations. If this provision had been upheld by
the Supreme Court, there would be no constitutional limitation on
federal expansion in this area.
VAWA also included a provision awarding attorneys fees, thereby
creating a bonanza for contingency-fee attorneys seeking to intimidate
defendants with allegations of rape and even marital rape. While
states place sensible time limits on such accusations in order to
enable prompt and fair investigation of the facts, VAWA allowed
attorneys to make allegations up to four years afterwards.
No one is helped, least of all women, when a criminal victim turns
to a contingency-fee attorney rather than to local police. If the
allegations are true, only the local police can stop the perpetrator
from continuing to harm the victim and others. If the allegations are
embellishments, no one benefits from the spectacle of a federal court,
years later, trying to sift fact from fiction.
This VAWA provision would have been a giant step towards a
complete takeover of marriage and domestic relations law by the federal
government. Federal judges, perhaps intimidated by graphic allegations
that began filling their dockets, repeatedly upheld application of this
Finally, in Virginia, a courageous federal judge stood up to the
pressure and defended the fundamental principle that local domestic
relations disputes should be addressed promptly by local authorities.
Congress has neither the constitutional authority nor the
experience to ameliorate domestic relations problems. A cadre of
gold-digging attorneys traipsing to federal court would likely make the
problem worse rather than better.
When U.S. v. Morrison reached the Supreme Court, dozens of liberal
and feminist organizations filed amicus curiae briefs in an attempt to
preserve this federal intrusion. Their friends in the media publicized
the actions of a handful of protesters on the day of oral argument in
order to increase the pressure.
Fortunately, the Supreme Court, in a straightforward decision,
confirmed that Congress cannot do what the Constitution did not give it
authority to do.
Logic, however, does not stop hungry attorneys and their allies
from demanding more and more cash opportunities in the form of new
federal remedies. The twin engine of attorney's fees for the bar and
liberal policy for the ideologues is what drove VAWA and similar
legislation through Congress, often under the deceptive name of civil
In fact, the VAWA provision did nothing to advance civil rights.
The media and VAWA supporters persistently concealed the fact that the
defendants in U.S. v. Morrison were blacks who had been exonerated by
the criminal justice system, yet were later subjected to civil
allegations unjustified by any independent investigation. Their
ultimate victory in this case, after years of being smeared, was a
triumph of justice.
The money at stake in this case and the cases that were expected
to be its progeny drove it all the way to the Supreme Court. Attorneys
had been salivating at the opportunity to apply VAWA to many of the
million-plus domestic break-ups that occur each year, which could
easily have translated into a new billion-dollar industry for lawyers.
Stunned at their loss, liberals are crying "racism" in a Pavlovian
reflex, claiming the Supreme Court's ruling is somehow tantamount to
siding with the South during the Civil War. That charge reflects the
lack of rational argument for upholding VAWA and only serves to
discredit those who assert it.
Nor is there any flaw in the Supreme Court's decision to cut off
pork for plaintiffs' attorneys in domestic disputes. The Court merely
invalidated VAWA's distorting incentives that encouraged victims to
seek big bucks in federal court rather than justice in state court.
Eagle Forum filed an amicus curiae brief against VAWA in the Brzonkala case.