Insuring Domestic Tranquility: Lopez, Federalization of Crime, and the Forgotten Role of the Domestic Violence Clause

Jay S. Bybee, University of Nevada, Las Vegas -- William S. Boyd School of Law


Lost in the discussions of the federalization of crime is the one clause in the Constitution that actually links Congress, the states, and the problem of local crime: the Domestic Violence Clause.

Long ignored by courts, the Domestic Violence Clause recognizes the primacy of the states in addressing domestic violence within their borders. It imposes on the federal government a duty to protect states against domestic violence, but only when states request assistance. The Domestic Violence Clause plays the role of a Tenth Amendment for crime. It is a reaffirmation of the enumerated powers doctrine and a promise of federal noninterference that prohibits not only the uninvited use of federal forces to combat crime, but also forbids federal legislation that displaces the states' obligation to protect their citizens by suppressing domestic violence.

Part I of this article begins with a discussion of the structure of state powers under the Constitution and discusses the Supreme Court's current view of the powers of the United States to define and punish crime. Part II then considers Lopez in greater detail and explains why the Tenth Amendment does not offer a satisfactory justification for exclusive state control over crime. Part III reviews the adoption of the Domestic Violence Clause and the Framers' diverse views regarding the power of the United States. This part considers the early interpretation of federal power through congressional criminal legislation, judicial enforcement, and executive intervention to suppress domestic violence in the states. Part IV examines the role of the Domestic Violence Clause in the debates over the Fourteenth Amendment and its enforcement and, in particular, the Civil Rights Act of 1871. These debates, as significant to the Fourteenth Amendment as the earlier debates and legislation were to the original Constitution, demonstrated nearly polar views of Congress's power to define national crimes. The Domestic Violence Clause figured prominently in these debates. Part V concludes with a discussion of the role of the Domestic Violence Clause in delegating authority between the federal government and the states. In particular, this part considers the clause's implications on Lopez and future cases dealing with the scope of federal criminal authority.