With all the talk about Palin's new Couric videos, we're all overlooking something else: what Joe Biden said. I thought Biden's discussion of Roe v. Wade was decent, but I particularly liked his discussion of US v. Morrison, where the Supreme Court struck down the Violence Against Women Act, put forth by Biden himself. His description of the case is a good distillation. Here's the video: (Treat yourself, don't even watch the Palin part.)
The Morrison decision was in 2000, and I thought it might be a good time to talk a little bit about it. The VAWA was written by Biden and aimed at giving women who were the victims of violence a forum to bring a civil suit against their attackers. The case in Morrison was brought by a Virginia Tech freshman who charged two football players with rape. Even though one admitted to having sex after she'd said no, the school did nothing to punish them and a grand jury did not bring charges. This was exactly the kind of case VAWA was created for, when the system at large had failed women.
Morrison struck down The Violence Against Women Act (or VAWA) based on the Commerce Clause. Generally, the powers of the federal government and congress are limited to those enumerated in the Constitution, with the remaining powers left to the states. VAWA relied on the Commerce Clause to gain federal traction, which may sound a little crazy. But Biden had mountains of hours of testimony on the effects of sexual assault on interstate commerce. This was very important. Two previous Supreme Court decisions came into play. One said aggregate effects could be considered to qualify for the Commerce Clause. The second, decided only a few years before Morrison, gave a balancing test with four factors. Two of those four were addressed in VAWA: congressional findings of an economic link, and the strength of the link itself. While the Court recognized that congressional hearings took place, they hardly gave it any weight and instead gave their emphasis to the other factors.
VAWA still exists in a changed form. The federal court remedy is gone, but VAWA still provides funding to fight crime against women. The Morrison case is a staple of Constitutional Law classes all over the country. A lot of people think the Court got it right, that if you can link rape to commerce you can link anything to commerce. Others think that it shows the weaknesses of a Court that uses balancing tests where you weigh different factors. A lot of people thought the test established previously should have made VAWA a close call, but it also gives the ability to pick which ever factors you think are more relevant and ignore others. One notable thing: 36 states filed amicus briefs in support of VAWA. While Morrison struck down VAWA as taking power away from the states, the states themselves acknowledged that they wanted the help.
I know Sarah Palin has got all the women in the world talking. But Biden's sure done his part, and I love that VAWA is still on the top of his mind.