Morrison, Shelby County, and the Congruence and Proportionality Shell Game

Yesterday was Lopez/Morrison/Raich day in American Constitutional Development. Much of the student discussion, as it tends to, focused on the middle case, which many students found particularly flabbergasting. In United States v. Morrison, the Supreme Court ruled that the civil remedy created by Congress for victims of gender-motivated violence unconstitutional. The case involved a case in which a Virginia Tech football player who “[d]uring the school-conducted hearing on her complaint…admitted having sexual contact with her despite the fact that she had twice told him “no.” Virginia Tech, despite having him dead to rights, botched the case twice over — first by failing to provide adequate notice about the school’s Sexual Assault Policy and hence withdrawing the initial one-year suspension, and then by attempting to suspend Morrison for the same year for saying “you better not have any fucking diseases” after the assault rather than for the assault itself. Taking the suspension for “abusive language” at face value, the punishment was then ruled disproportionate. The state having failed to protect her, the victim sued Morrison under the VAWA, leading to her introduction to the glories of states’ “rights.”

I would have voted to sustain the civil remedy under the Commerce Clause, while acknowledging that it’s a closer case than the Court’s obviously correct holdings in Wickard and Raich. But to me, the superior basis for upholding the civil remedy would be under Congress’s explicit authority to enforce the Equal Protection clause of the 14th Amendment. Given the implications of where the Rehnquist Court seemed to be heading in its Commerce Clause doctrine, the dissents focused almost exclusively on the Article I federalism issue. Only Breyer tentatively brought the 14th Amendment issue up, and only Stevens even joined that section. As I’m guessing Ginsburg and Souter would acknowledge with Shelby County having concentrated the mind, this was a serious mistake.

Rehnquist begins the opinion of the Court by blandly citing three cases:

Believing that these cases are controlled by our decisions in United States v. Lopez, 514 U.S. 549 (1995), United States v. Harris, 106 U.S. 629 (1883), and the Civil Rights Cases, 109 U.S. 3 (1883), we affirm.

This sentence, written by this author, tells us a great deal about race and American political and Constitutional development. Rehnquist, a former polling booth goon who asserted as Brown was being considered by the Court that “I think Plessy v. Ferguson was right and should be reaffirmed,” justifies restricting Congress’s power to enforce the 14th Amendment by citing 2 19th century precedents every bit as egregious as Plessy or Dred Scott. Roberts in Shelby County was shrewd enough not to cite Dred Scott even as he relied on its constitutional logic. But Rehnquist can cite equally white supremacist attacks on federal authority (without, it must be said, the dissenters even putting up much of a fuss.)

In the Civil Rights Cases, the Court struck down the Civil Rights Act of 1875. In Harris, the Court struck down Section 2 of the Force Act, holding that Congress did not have the authority to prosecute in a case in which the state of Georgia failed to prevent a lynching. (The former case had a lone dissent by the first Justice Harlan that is one of the greatest in the United States Reports; the latter was unanimous. The Republican Party abandoned Reconstruction with all non-deliberate speed.) These holdings were utterly subversive of the core purpose of the Reconstruction Amendments. The framers of the 14th Amendment understood the stakes — as the language of “equal protection” itself reflects, they understood that state inaction was at least as big a threat to the rights of freedmen as discriminatory state action. This is why Congress was given the authority to enforce the Reconstruction Amendments, and why opponents of civil rights wanted these sections read to defeat their purposes in 1883 and still do today. But when enforcing the amendments, Congress should not be prohibited from reaching private action if this is necessary to remedy state inaction. The failure of the state of Virginia to adequately protect Christy Brzonkala is exactly the kind of thing the 14th Amendment was intended to address.

William O. Douglas was entirely correct that the Court should have used its decisions upholding the Civil Rights Act of 1964 as a vehicle to overrule the Civil Rights Cases. But would this have led to a different outcome in Morrison? Almost certainly not, because as anyone who’s read Shelby County knows, opponents of civil rights can find a way to weasel out of even the most unequivocal language. According to Rehnquist, even if Congress could address state inaction through its 14th Amendment powers, the civil remedy in the VAWA would still be unconstitutional:

But even if that distinction were valid, we do not believe it would save §13981’s civil remedy. For the remedy is simply not “corrective in its character, adapted to counteract and redress the operation of such prohibited [s]tate laws or proceedings of [s]tate officers.” Or, as we have phrased it in more recent cases, prophylactic legislation under §5 must have a “ ‘congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”

[…]

Section 13981 is also different from these previously upheld remedies in that it applies uniformly throughout the Nation. Congress’ findings indicate that the problem of discrimination against the victims of gender-motivated crimes does not exist in all States, or even most States. By contrast, the §5 remedy upheld in Katzenbach v. Morgan was directed only to the State where the evil found by Congress existed, and in South Carolina v. Katzenbach the remedy was directed only to those States in which Congress found that there had been discrimination.

Ah, yes, “congruence and proportionality.” This the anti-civil rights hack circle that Chief Justice Rehnquist’s successor would complete in Shelby County. Section 13981 of the VAWA is unconstitutional because it is not narrowly targeted at specific states. But Section 4 of the Voting Rights Act is unconstitutional because targeting specific states violates their Solemn Equal Sovereign Dignitude. (I think we can see why Roberts doesn’t cite the “congruence and proportionality” cases whose logic he seems to be relying on. Notice a trend here? Shelby County really is a remarkable piece of work in the worst sense.) Congress can enforce the Reconstruction Amendments, as long as the number of covered states isn’t between 1 and 50.