By Jonathan Walters

There was a whole lot of hullabaloo over last week’s U.S. Supreme Court decision invalidating part of the Violence Against Women Act of 1994, which by a vote of 5-4 the high court declared to be an act of congressional overreaching. A sampling of the hysteria includes one New York Times op-ed writer who opined that the court was taking the country back to a Reconstruction-era legal world. Indeed, judging by the reaction of some who’ve jumped into this argument, you’d think the Supreme Court was laying the groundwork to nullify the Civil Rights Act of 1964 itself.

But it doesn’t take a legal scholar to see what is happening, here. And what is happening is not some dark conspiracy on the part of five of the nine justices to push the United States back to a time when certain states’ courts were well known for their chronic failure to stand by whole classes of citizenry. What is happening here is a long-overdue scrutinizing of what state legal systems ought to be responsible for versus federal systems. Over the course of several terms, now, the Supreme Court has been regularly challenging the decades-old premise that Congress can take over state legal turf just by including in a given piece of legislation some boilerplate allusion to the Commerce Clause of the U.S. Constitution — takeovers, not incidentally, all too often inspired by the desire to rack up quick political points rather than by evidence of clear legal need.

Fundamentally, the whole issue revolves around a pretty simple question: Are states up to the job of prosecuting those who’ve broken the law? Do states offer other legal avenues for victims of crime, specifically victims who might want to pursue monetary damages in a criminal case, as the federal Violence Against Women Act did.

If there were evidence that states didn’t care about crimes like rape or domestic abuse or that they had evinced some regular pattern of prejudice against a given class of citizens who might seek satisfaction by suing for damages in such cases, it would be one thing. But when it comes to violence against women, there is no evidence that the states are falling down on the job, or that the federal government is any better placed or equipped to deal with the issue.

And if it turns out that states are failing to protect some class of citizens — or even specific citizens — then state residents can make a federal case out of it. That’s what the equal-protection clause of the Fourteenth Amendment is for, and those are the sorts of cases that federal courts should be hearing.

Jonathan Walters is a Governing staff correspondent.

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