The Supreme Court's ruling this week striking down portions of the Violence Against Women Act is the unfortunate consequence of a series of political decisions harking back to Reconstruction. These decisions have created a Catch-22 for modern federal civil rights legislation.
Federal civil rights laws are generally passed under either Congress' power to regulate interstate commerce or its power to enforce the 14th Amendment.
The 14th Amendment is the natural home of civil rights legislation. It guarantees equal citizenship, and it gives Congress power to enforce equality rights. But in the 1880s, the Supreme Court greatly narrowed the scope of this enforcement power, for overtly racist reasons. The court held that Congress couldn't protect blacks from private discrimination because that would make them "the special favorite of the laws," as Justice Joseph P. Bradley wrote in the Civil Rights Cases of 1883.
Years later the Supreme Court would overturn many other racist decisions of that era, including Plessy vs. Ferguson, which gave blessing to Jim Crow laws. But it never overturned the Civil Rights Cases.
That led the Kennedy and Johnson administrations to seek another way of enacting civil rights legislation. They didn't try to overturn the precedent established in the 1880s. Instead, they drafted laws that used the commerce clause as their foundation, arguing that racial discrimination interfered with interstate commerce. By doing so, the 1960s' civil rights laws created a genuine incongruity: They used the power to regulate the economy to guarantee civil equality.
In his majority opinion overturning the Violence Against Women Act, Justice William Rehnquist used this history to create a Catch-22. He ruled that the act, adopted by Congress in 1994 to protect women's civil rights, could not be a regulation of interstate commerce because violence against women was not "economic" _ even if the violence had real and palpable economic effects.
Nor, he wrote, is the law constitutional under Congress' power to enforce the 14th Amendment, because that power extends only to regulating conduct by the state. Without a hint of embarrassment, Rehnquist argued that the decision in the Civil Rights Cases was hallowed by time and could not be disturbed.
The same Catch-22 arose earlier this term when the Supreme Court ruled that Congress lacked the authority to bind state governments to the federal law that bars age discrimination in the workplace.
The court ruled that states can be sued for damages only if they violate laws created under Congress' power to enforce the 14th Amendment. But, the court also ruled, states cannot be sued for damages if Congress passed the laws under the commerce clause.
Since many federal civil rights laws passed after the 1960s are based on Congress' commerce power, that decision means states can now violate many civil rights with impunity.
The Supreme Court has taken a wrong turn in these cases. It's striking down the work of a democratically elected legislature. But it's not too late to end this constitutional Catch-22.
We should get rid of the racist precedents of the 1880s. We should recognize what the framers of the 14th Amendment intended: Congress has an independent power and obligation to promote and protect equal citizenship and civil rights.
If Congress believes that a law is necessary and proper to promote equal citizenship, it should have the power to pass it without using the fiction that inequality affects interstate commerce.
+ Jack M. Balkin, a law professor at Yale, is the author of Cultural Software: A Theory of Ideology. +
The New York Times