In the famous (but still too lonely) Lopez case, the Supreme Court
voted 5-4 in 1995 to strike down the Gun-Free School Zones Act of 1990,
ruling that banning guns from neighborhoods surrounding public schools is
not within the powers delegated to the federal Congress under its
constitutional mandate to "regulate commerce ... among the several states."
Congressmen had extemporized that the founders meant to give them power
to regulate the places where firearms might be carried, since parts of many
firearms are manufactured in certain states, and then assembled or sold in
other states. The high court laughed this out of the room, thank goodness.
Local public schools are not involved in the business of imposing tariffs
or duties on interstate freight -- if such a law could be justified as
affecting "interstate trade," there would be nothing left which could
not be so justified.
Now, in a 7-4 ruling handed down March 9, the U.S. Court of Appeals for
the 4th Circuit has gone further down this same path, throwing out
provisions of the federal Violence Against Women Act of 1994.
While the appeals court doubtless has sympathy for rape victims -- the
case in question involves a freshman at Virginia Polytechnic Institute,
raped by a member of the football team who received little more than a slap
on the wrist -- a clear majority nonetheless held such offenses are matters
for the jurisprudence of the several states, dismissing as absurd another
congressional rationale under the commerce clause, this one holding that
violence against women is a federal matter since it "deters potential
victims from traveling interstate, from engaging in employment in
interstate business, and from transacting with business in interstate
commerce ... by diminishing national productivity, increasing medical and
other costs, and decreasing the supply of and the demand for interstate
Concurring with the majority, Circuit Court Judge J. Harvie Wilkinson III
dismissed such tortuous nonsense: "The Commerce Clause,"' he said, "must
contain some limitations if its language is not to be completely excised
from the Constitution." If the courts fail to re-instate such limits, the
states will become "mere marionettes of the central government," Judge
Of course rape is a terrible crime and should be harshly punished when
the facts are clear -- but by state authorities, not distant bureaucrats in
Washington. So has the court now held, and so far so good.
Now, in a new case out of Maine in which arguments were heard March 31,
the U.S. Supreme Court has yet another opportunity to rein in the power of
the federal government and increase the autonomy of the states, this time
perhaps even restoring some measure of their intended effectiveness to the
Ninth and Tenth Amendments.
The high court -- of which a slim 5-4 majority has repeatedly held out
for restoring more state sovereignty in recent years -- is expected to rule
by June on whether state governments can be sued in state courts by
employees seeking to enforce federal labor law.
A group of probation officers sued Maine in federal court in 1992, saying
they were unfairly being denied the time-and-a-half overtime pay guaranteed
by the federal Fair Labor Standards Act.
While their initial lawsuit was pending, the Supreme Court ruled in 1996
that the Constitution's 11th Amendment shields states from being sued
against their will in federal court. So the probation officers refiled
their lawsuit in state court, still depending on the federal law.
Maine's courts, however, ruled that the 11th Amendment makes states
immune from state court lawsuits that would be barred in federal courts,
though federal labor officials may still sue the state in attempts to
enforce such federal edicts.
The probation officers' Supreme Court appeal has brought quite a
collection of supporters out of the woodwork, from the National Association
of Police Organizations to a coalition of publishers worried about their
right to sue states over alleged copyright infringement.
But no matter whose oxen are gored, the fact remains that under America's
original bargain, we are guaranteed a central government of limited powers,
sharply delineated, while most rights and prerogatives remain in the hands
of the people or the (now 50) sovereign states, each guaranteed its own,
separate, republican form of government.
After 66 (or is it 86?) years of usurpations by the grifters and
permanent perfumed potentates of Washington, we are still a long way from
restoring that ideal. But at least the courts appear to be finally headed
-- however haltingly -- back in the right direction.