As despicable as this practice may be
A judge in Detroit has ruled a federal law against FGM unconstitutional…
…thereby dismissing the key charges against two Michigan doctors and six others accused of subjecting at least nine minor girls to the cutting procedure in the nation’s first FGM case.
The historic case involves minor girls from Michigan, Illinois and Minnesota, including some who cried, screamed and bled during the procedure and one who was given Valium ground in liquid Tylenol to keep her calm, court records show.
Some? Surely they all bled, and cried and screamed too.
U.S. District Judge Bernard Friedman concluded that “as despicable as this practice may be,” Congress did not have the authority to pass the 22-year-old federal law that criminalizes female genital mutilation, and that FGM is for the states to regulate. FGM is banned worldwide and has been outlawed in more than 30 countries, though the U.S. statute had never been tested before this case.
Well, cool. Let’s ban it in New York and California but allow it in Texas and Mississippi. Let a thousand flowers bloom.
U.S. District Judge Bernard Friedman concluded that “as despicable as this practice may be,” Congress did not have the authority to pass the 22-year-old federal law that criminalizes female genital mutilation, and that FGM is for the states to regulate. FGM is banned worldwide and has been outlawed in more than 30 countries, though the U.S. statute had never been tested before this case.
“As laudable as the prohibition of a particular type of abuse of girls may be … federalism concerns deprive Congress of the power to enact this statute,” Friedman wrote in his 28-page opinion, noting: “Congress overstepped its bounds by legislating to prohibit FGM … FGM is a ‘local criminal activity’ which, in keeping with long-standing tradition and our federal system of government, is for the states to regulate, not Congress.”
“Tradition” can’t stop Trump firing Comey and Sessions and installing a corrupt hack as Acting Attorney General, but by god it can stop the government saying people can’t cut girls’ genitalia off.
For FGM survivor and social activist Mariya Taher, who heads a campaign out of Cambridge, Massachusetts, to ban FGM worldwide, Friedman’s ruling was a punch to the gut.
“Oh my God, this is crazy,” said Taher, stressing she fears the ruling will put more young women in harm’s way. “Unfortunately, this is going to embolden those who believe that this must be continued … they’ll feel that this is permission, that it’s OK to do this.”
Taher, who, at 7, was subjected to the same type of religious cutting procedure that’s at issue in the Michigan case, said she doesn’t expect laws alone to end FGM. But they are needed, she stressed.
“This is a violation of one person’s human rights. It’s a form of gender violence. … This is cultural violence,” 35-year-old Taher said.
Yasmeen Hassan, executive global director for Equality Now, an international women’s rights organization, agreed, saying the ruling sends a disturbing message to women and girls.
“It says you are not important,” Hassan said, calling the ruling a “federal blessing” for FGM.
…
Friedman’s ruling also drew the ire of Sen. Rick Jones, R-Grand Ledge.
“I’m angry that the federal judge dismissed this horrific case that affected upwards of a hundred girls who were brutally victimized and attacked against their will,” Jones said in a statement, noting 23 states don’t have FGM laws.
“This is why it was so important for Michigan to act. We set a precedent that female genital mutilation will not be tolerated here, and we did so by passing a state law that comes with a 15-year felony punishment,” Jones said. “I hope other states will follow suit.”
This is one time a Republican has it exactly right.
How would this go down? “U.S. District Judge Bernard Friedman concluded that “as despicable as this practice may be,” Congress did not have the authority to pass the 153-year-old federal law that criminalizes slavery, and that slavery is for the states to regulate.”
One more constitutional crisis coming right up! And would you like fries with that?
A particular type? How about prohibiting all types of abuse of girls?
Ah no, that would never do; most types of abuse of girls are perfectly fine.
/s
Omar @ 1 – That was of course (but far less of course to non-Americans, of…course) a major issue. That was the Southern rationale for seceding – the Federal government was trampling on the rights of states. The Dred Scott ruling threw a bomb into the works partly because it ruled out federal laws protecting “the black man.”
In other words your suggestion now sounds like a reductio ad absurdum but in the mid-19th century it was a very familiar argument and after 1857 it was the law of the land.
Omar,
The problem with your argument/hypothetical is that there’s an actual Constitutional amendment (the 13th) that (1) outlaws slavery, and (2) expressly authorizes Congress to enforce by appropriate legislation.
In the U.S., the federal government only has those powers that are granted to it by the Constitution. Anything else can only be regulated by the states, if at all. It didn’t have to be that way — other countries have it the other way around, with states/provinces having expressly limited powers and the national government having jurisdiction by default — and it may not be the best way, but it’s the constitutional design that was chosen. This isn’t something that conservatives invented to fuck with liberals.
Having said that, it’s certainly true that not a lot of people are consistent about federalism issues. Conservatives love to champion federalism when it’s a chance to strike down Obamacare or other social welfare legislation, but tend to fall silent when there’s dubious federal legislation that they like. (This particular law was passed in 1996, when the Republicans controlled both houses of Congress.) Plenty of liberals are selective federalists, too. There’s going to be an oh-so-fun debate when, after the Supreme Court eviscerates abortion rights, all of the Republicans who swore that they just wanted to “send the issue back to the states” start passing federal laws against abortion, and everybody switches their position on federal power.
I read the article, but not the full judicial opinion, so I don’t have a firm opinion on it, but as a matter of constitutional law, I’m not shocked or outraged. There are boundaries to what the federal government can regulate, and those don’t change depending on whether or not the particular regulation is a good or bad thing.
It’s kind of a perk of not being a lawyer that we non-lawyers don’t have to be consistent federalists/anti-federalists or federalists/anti-federalists at all.
OB and SM: Thanks and all noted.
Ophelia,
One of the many perks! You don’t know how good you have it….
Ha!
FGM is the equivalent of a penectomy. I doubt penectomies would be treated the same way by any US judge.
Screech Monkey: “other countries have it the other way around, with states/provinces having expressly limited powers and the national government having jurisdiction by default”
While Canadians were arguing over the rules for federal & provincial powers in the to be created confederation, they were watching the fighting to their south & thinking that it would probably be better to give the federal government jurisdiction by default.
I don’t really understand the logic here – isn’t the vast majority of crimes ‘local’, including murder, fraud, theft? So as long as you don’t do it to people in two different states, the central government cannot regulate those, let’s say, activities?
Well, we have a long standing tolerance for male circumcision. But what does that ‘local’ language mean? FGM is not some quaint Michigan quirk, it is an internationally supported brutalization of girls which has picked up support from Islamic authority in those cultures and countries where it was established anyway.
Can we have ANY federal law according to this judge? Isn’t bank robbery or stock fraud a ‘local criminal activity?’
I think those fall under regulation of commerce.
Alex XL, yes. Most of the common crimes in the U.S. are a matter of state law only. Generally speaking, if you murder, assault, rape, or rob someone, you probably haven’t broken a federal law. That’s not a reflection on how serious the crime is, or how severe the punishment can be — state law can impose sentences just as severe (including death) as for federal crimes. As to whether that is logical or not, I guess it depends on your underlying assumptions. If you think it’s important that every serious crime be prosecutable by the federal government, then I suppose it’s illogical. But the constitutional structure wasn’t that the federal government got all the “important” stuff and that only less important stuff was left to the states.
Of course, over the centuries, the federal government’s reach has expanded, largely due to (1) what counts as “regulating interstate commerce”; and (2) the post-Civil War constitutional amendments. So the federal government probably *could* federalize a lot more crimes than it does, if Congress chose to do so. But I’d better stop there before I go on a long lecture about the history of commerce clause jurisprudence….