By Scott Tibbs, May 21, 2012
There is an elephant in the room regarding the Violence Against Women Act, one that neither political party seems interested in acknowledging it as they both seek to pass their versions of the bill: Why is the federal government inserting itself into what should be a matter handled by local law enforcement? Why is the U.S. Congress passing legislation that would be better handled by the fifty state legislatures?
It is understandable why Republicans would not want to question the basic premise of the law, with all of the accusations that Republicans are waging a "war on women" and concerns about how that will impact the 2012 election. But with the increased influence of the Tea Party movement and all of the talk about how the Tenth Amendment's limitations on federal power are being ignored, it is striking that no one is asking where in the Constitution the federal government is given the authority to police domestic violence.
Beyond the basic problems with the law, there are serious concerns about the Democrats' version of VAWA. Democrats want to include special protections for homosexual and transgendered people, and the Christian Science Monitor reports that Democrats argue that "local law enforcement could use the lack of specificity to discriminate against gay or transgender people" without the special protection. But the 14th Amendment already makes it illegal for states to deny equal protection under the law, so additional federal legislation is not needed.
Another very serious problem is that the Democrats' VAWA allows American citizens to be tried under the justice systems of various Indian tribes. This is a clearly unconstitutional attack on individual liberty and due process rights. American citizens accused of crimes on American soil (whether it is a reservation or not) have the right to due process in the American criminal justice system. It is incredibly hypocritical for Democrats to support a separate court system, especially after they wailed for years about the military tribunals for suspected foreign terrorists.
Without the backdrop of a Presidential election, it might be possible to debate the benefits and drawbacks of VAWA in a sane and rational manner. (Phyllis Schlafly has a couple very good columns on VAWA from July 12, 2011 and February 7, 2012.) But against the backdrop of the "war on women" demagoguery and Presidential politics, it is virtually assured that some version of VAWA will be re-authorized. That is an unfortunate reality of our political system.