Does the Commerce Clause Protect Female Genital Mutilation?

Three weeks ago 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 in 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.

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