Congressional opposition to the Violence Against Women Act comes clad in the patriarchal toga of a radical interpretation of the 10th Amendment. The traditional Roman 20 feet of woolen cloth draped over the tunic is surely sufficient to cloak the misogyny which might be a factor for some members of the 113th Congress. However, it is now, and always has been a minority view and no amount of high flying rhetoric (or cable news air time) can make it more than what it’s always been — a convenient cover for “State’s Rights.”
The Tenthers found their pseudo-philosophy on Madisonian fragments. “Their basis for ignoring the plain language of the Constitution is a statement by James Madison that federal spending is only really permitted when it advances one of Congress’ other enumerated powers, such as by building a post office or funding a war.” [Prospect] However, the Tenther’s philosophical underpinning breaks down almost immediately, in the provisions of the “enumerated powers” section of the Constitution itself. The closing lines of Article I, Section 8 (the enumeration of powers) provide Congress with the power:
“To make all laws necessary and proper for carrying into execution the fore-going powers, and all other powers vested by this Constitution in the government of the United States, or in any Department or officer thereof.”
Mr. Madison may have wished for a State’s Rights emphasis in the Constitution, but he lost. He may have wanted a founding document closer to the old Articles of Confederation, but his side did not prevail. Further, when he did assume the Presidency of the United States whom did he appoint to the Supreme Court but Justice Story — a confirmed Hamiltonian Federalist.
If a secret decoder ring, tea leaves, crystal balls, and anachronistic projection aren’t enough to deconstruct the U.S. Constitution into a milk toast version of the Articles of Confederation, then what’s a Tenther to do? There is an interesting crossing of ideas in the Tenther Theology — are they angry with “activist judges” who legislate from the bench — especially when they affirm provisions of the Violence Against Women Act — or do they want a Constitution so rigidly interpreted that neither Congress nor the Courts may legislate or confirm such legislation at all?
Government Shouldn’t Govern?
The Tenther Radicals make an assumption about governance which is profoundly antithetical to the notion of American progress. If the legislation in question promotes privatization and individualism then it is Constitutional, if the legislation promotes the general welfare or secures common support for needs of significant categories of citizens then it is unconstitutional. There are some significant historical examples to which we can refer.
Tenthers railed against the enactment of Social Security during the Depression as a “power grab” of the first water. The transcripts of Senatorial debate are instructive, if somewhat tedious in detail, and illustrate the continuing discussion about the efficacy, efficiency, and constitutionality concerning this centerpiece of New Deal legislation. Modern Tenthers seek to privatize the Social Security program under the rubric of “saving” it, or “strengthening” it, or “reforming” it. However, each of the proposals actually set forth to accomplish this end result in Privatization.
Tenthers were appalled by the Supreme Court’s decision in Brown v. Topeka Board of Education. The landmark modern civil rights case struck the Old South like lightning. As Jim Crow Era laws were struck down, or legislated out of existence, the cry for State’s Rights (Tenth Amendment) increased. The rallying cries may have changed from Segregation Now Segregation Forever, to No Affirmative Action; but, the voices are essentially the same. Proscribed behavior, such as discriminating against people of color, women, and members of the LGBT community, has been reframed by white (and often male) dissenters to create a sense of victim-hood. Thus, in the radical thinking of the Tenther camp if one is prevented from discriminating, or prevented from individual actions which could result in community harm, then the perpetrator becomes the erstwhile victim.
Victims and Victim-hood
The Tenthers have now reached toward the Violence Against Women Act and seek to fly their Over-reaching Power of Government banner against this statute. It should be noted that the 2000 U.S. v. Morrison case to which they often refer, did rule against using the Commerce Clause as a foundation for VAWA, but left the essential features of the legislation intact. It is certainly better optics to argue against the VAWA authorization as “unconstitutional” as opposed to standing on the floor of the House or Senate maintaining that the Rule of Thumb (you can’t beat your wife with a piece of lumber of greater circumference than your thumb) should be the law of the land. Here, again, we find the “victim-hood” revision.
“Claiming that the reauthorization would expand the definition of domestic violence to include “emotional distress,” Heritage declared that the “expansive and vague language will increase fraud and false allegations, for which there is no legal recourse.”
“Under VAWA, men effectively lose their constitutional rights to due process, presumption of innocence, equal treatment under the law, the right to a fair trial and to confront one’s accusers, the right to bear arms, and all custody/visitation rights,” the group wrote. “It is unprecedented, unnecessary and dangerous.” [TPM]
Lo, the poor wife beaters? Those who psychologically damage their victims could be the “victims” of false allegations? With no legal recourse? In the instance of rape the best statistics indicate a false report rate of approximately 8%. [Slate] This is why we have prosecutors and trials. Those instances in which the crime was not completed are classified as assaults, and those which are completed, but without substantiation or conviction aren’t counted. Juries are the finders of fact. No fact. Probably no prosecution. No conviction.
What the Conservatives appear to be lamenting is not the false allegation, but the ramifications of being convicted of domestic violence. Does anyone seriously believe that a man or woman who is convicted of an act of domestic violence should be able to “visit” the family he or she has just brutalized? The statistics on gun violence add another layer:
“Although firearms are used in a relatively small percentage of domestic violence incidents, when a firearm is present, domestic violence can and all too often does turn into domestic homicide. Congress, recognizing the unique and deadly role firearms play in domestic violence passed the Protective Order Gun Ban in 1994. The law prohibits gun possession by a person against whom there is a restraining or protective order for domestic violence. In 1996, Congress passed the Domestic Violence Misdemeanor Gun Ban, which prohibits anyone convicted of a misdemeanor crime of domestic violence or child abuse from purchasing or possessing a gun.” [VPC]
If one has already threatened the family with a baseball bat, knife, or other any other weapon — are the conservatives arguing that the person should have the “right” to escalate the violence by adding in a few firearms?
Another conservative outlet, Freedom Works lamented:
“The newest version of the VAWA, S.47, contains very vague and broad definitions of domestic violence,” the organization wrote. “A man that raises his voice at his partner, calls her an offensive name, stalks her, causes her any emotional distress, or simply just annoys her can potentially be prosecuted under the VAWA. Calling your spouse a mean name is not advised or polite, but it isn’t the same thing as violence towards her.”
Really? What would we call a person who shouts vile epithets at a partner every day for a year? A person who uses offensive language, especially in front of children, at top voice (or drunken slur) for weeks on end is “impolite?” Stalking a domestic partner is “not advisable?” If the behavior is sufficiently abusive to cause a person to get a restraining order, then is it not “violent?”
One legal authority describes the effects as a component of verbal abuse as follows:
“Perpetrators of verbal abuse often misuse their authority and prey on those in a subordinate position. Victims of verbal abuse are often told they are to blame for the abuser’s behavior and reluctant to take action to end the abuse. Verbal abuse may lead to stress, depression, physical ailments, and other damage.” [USLegal]
So, by the lights of the conservative opponents, abuse which leads to stress, depression, physical ailments and other damage, isn’t really violent? Must the victim be physically injured? Must the injury require bone setting, or will a few stitches be enough? Must the injury be permanent? Scarring? How much blood must be on the floor before the opponents of VAWA are satisfied?
How many women or domestic partners must be subjected to domestic violence before the federal government can assist state and local police with funding for domestic violence training and support programs? Are the Tenthers arguing that the federal government has no role to play in the following state and local programs?
“VAWA, FVPSA, and VOCA funding support domestic violence shelters, law enforcement, courts, rape crisis centers, children’s services, prevention, community outreach, and other state and local programs that provide services for victims and families. These programs have made significant progress towards ending domestic and sexual violence. Statistics show a significant decline in domestic violence since VAWA was first enacted in 1994. In addition to saving lives, VAWA, FVPSA, and VOCA save money by reducing future violence and other related social costs.” [NNEDV]
What the Tenthers are essentially telling victims of domestic violence is that the Federal government exceeds its constitutional authority when it assists states and local governments with violence prevention programs, with law enforcement efforts, with community outreach and educational programs, and with shelters for abuse victims. This is not a usurpation of state and local authority, but a collaborative effort to end a scourge perpetrated by those who mis-use and abuse their authority over others, and who prey on those in subordinate positions.
The Tenthers have no substantial legal or constitutional argument to make, they have an unfortunate history of using their radical theory to perpetuate some of the more egregious practices and traditions in American life, and they are now clutching their togas and seeking to hide a misogynistic agenda beneath the folds of a document which begins with “WE the people.”