VAWA

[Paul Salamanca]

I understand the argument that the state action requirement for federal
legislation enforcing the substantive provisions of the Fourteenth
Amendment is a lenient one -- see United States v. Guest -- but I would be
surprised to see the Court abandon that position completely.  If there is
no state action requirement to the Fourteenth Amendment's substantive
provisions, a great many hard-fought and recently decided cases were
litigated for no reason.  I imagine that the Court will apply the
"proportionality and congruence" language of Boerne to VAWA, asking whether
going after strictly private action is called for in the specific context
of enforcing women's rights to equal protection, as guaranteed by the
Fourteenth Amendment.

                                                        Paul E. Salamanca
                                                        University of Kentucky
                                                        College of Law

At 03:13 PM 9/29/1999 +0000, you wrote:
>I think Brzonkala is going to be a real test of the Court's
>commitment to states' rights and cabining federal power.
>
>The lack of Commerce Clause power follows pretty easily from Lopez,
>and there are almost certainly 5 votes for the 4th Circuit's
>position.
>
>But in order to affirm, the Court will have to find power
>lacking under the 14th Amendment. The Fourth Circuit relied on
>the 1883 Civil Rights Cases, holding that Congress could not
>regulate private conduct under section 5. Is the Court willing to
>reaffirm the Civil Rights Cases, with all the racial baggage that
>such a move would entail?  Or can they find a way to finesse it by
>saying that the problem isn't private action but gender
>discrimination? I think it will be a really hard case to affirm--and
>I think there are at least 3 and maybe as many as 5 Justices who
>would dearly love to do so.
>
>Suzanna Sherry
>University of Minnesota Law School
>sherry at maroon.tc.umn.edu
>612-625-2339
>
>http://www.law.umn.edu/FacultyProfiles/SSherry.htm
>
>