Last month U.S. District Judge Bernard Friedman declared that the twenty-two-year-old federal
law banning female genital mutilation was unconstitutional. This ruling took Dr. Jumana Nagarwala and
seven others off the legal hook for allegedly “circumcising” the genitals of
nine girls from Michigan and two adjacent states, girls who were around seven years
old when Dr. Nagarwala, an immigrant from India, performed an operation that
most American doctors just won’t do. Though
only nine girls were included in the charges, it is likely that dozens more underwent a genital cutting ritual
observed by a Muslim sect based in India and apparently practiced by several
worshipers attending a Farmington Hills, Michigan mosque.
The judge’s legal
analysis, curiously enough, was based on a constitutional principle that most jurists
have ignored since FDR’s New Deal-pliant Supreme Court ruled in 1942 (Wickard v. Filburn) that an Ohio farmer whose wheat grown
solely to feed his own animals was nevertheless subject to federal limits
mandated by the Agricultural Adjustment Act of 1938 -- an act based on the
Constitution’s Commerce Clause that was originally designed to regulate
commerce between largely sovereign states.
In the
words of FDR’s Court: “[E]ven if
appellee's activity be local and though it may not be regarded as commerce, it
may still, whatever its nature, be reached by Congress if it exerts a
substantial economic effect on interstate commerce and this irrespective of
whether such effect is what might at some earlier time have been defined as
'direct' or 'indirect.'" In
other words, even if Filburn’s “excess” wheat was consumed only by his own cows
and had no impact on interstate commerce, the prospect that thousands of other
farmers might follow his example and thus create such an impact on wheat prices made it lawful for Congress
to legislate under the Commerce Clause with respect to Filburn’s bovine-bound crop.
After
this ruling in 1942 it was Katy-bar-the-door on what Congress could legislate
under the Commerce Clause, at least until 1995 when the Court nixed use of that
clause to ban gun possession near schools (U.S. vs Lopez). In this case, however, a specific Second
Amendment right was at stake. A more
germane decision was handed down in 2000 (U.S. vs Morrison) when the
Court struck down a federal law concerning sexual assault victims that was also
predicated, remarkably, on the Commerce Clause and was based on the notion that
“Congress may regulate non-economic, violent criminal conduct based solely on
that conduct’s aggregate effect on interstate commerce.” At least in this case the Court was refusing
to enshrine the idea that the Commerce Clause could be expanded indefinitely to
abolish any distinction between national and state power. In the genital mutilation case Judge Bernard likewise
declared that only state governments had
the authority to regulate or ban that “procedure.” And while a slight majority of states had
prohibitions against female genital mutilation at the time Dr. Nagarwala
performed the “cutting ritual,” Michigan did not then have a law that banned
FGM.
While
I am sympathetic to almost any attempt to limit federal authority, it is
strange that one of the few attempts to actually enforce reasonable limits on
the national government’s legislative power should take place in a
"multicultural" context. I
would feel much better about Judge Bernard’s ruling if limits on federal
authority had been a judicial priority when it came to topics like same-sex
marriage, federal incursions into collegiate sports under Title 9 to assure
"equal" male-female access to athletic programs, and the unjust
federal pressure exerted against pliant university administrators to create
kangaroo rape courts that are totally prejudiced against accused males. I say nothing about EPA incursions of power
over every patch of puddle-worthy soil that could possibly be designated
"wetlands."
Ironically,
the Commerce Clause is a perfectly acceptable vehicle for protecting abortion clinics from protesters
since that “procedure” is “both national and commercial,” a conclusion Planned
Parenthood will eagerly support -- sotto
voce. Moreover, the Sixth Circuit in
its wisdom observed that frustrating pregnant women or doctors from having or
performing abortions would definitely have “direct economic effects” (Norton v.
Ashcroft, 2002). Thus, so the judicial logic
goes, if only FGM were more widespread, Congress could legislate concerning it
via the Commerce Clause. And in fifty or
a hundred years (and with enough of the right type of immigrants in the
country) who knows what kind of prohibitions or protections it might craft.
Richard Kirk is a freelance writer living in
Southern California whose book Moral Illiteracy:
"Who's to Say?" is also available
on Kindle protestor
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