Violence, Gender, and Race: The Supreme Court and the Violence Against Women Act

Steven B. Dow, Michigan State University

Last year, in United States v. Morrison, the United States Supreme Court invalidated a provision of the Violence Against Women Act. This was only the second anti-discrimination law to be held unconstitutional since Reconstruction. A majority of the Court found that the statute was beyond the reach of Congress's power under both the interstate commerce clause and the Fourteenth Amendment. This paper focuses on the Fourteenth Amendment issue and considers the nature of the "state action" requirement for federal legislation under the amendment, a requirement the Court said was missing in the Morrison case. The paper then compares the current problem of violence against women with the problem of violence against newly freed African-Americans during and after Reconstruction. The paper concludes that the Court's interpretation of the amendment is at odds with the amendment's text and, more importantly, its historical context and legislative intent. The situation women currently face with respect to violence is parallel to that faced by African-Americans during Reconstruction. The systematic failure of the states' criminal justice systems to adequately protect women from acts of violence is precisely the type of circumstance that would justify federal legislation such as the Violence Against Women Act.

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Updated 05/20/2006