September 05, 2003

RADLEY BALKO doesn't like the prison rape bill I was praising earlier:

So at risk at being tagged as a shill for prison rapists, I'm wondering: how is this a federal issue? If the law applies only to federal prisons, fine. But the summary from the Stop Prison Rape site clearly implies it's much broader than that. . . .

If conventional, man-on-woman rape doesn't sufficiently affect interstate commerce to invoke the Commerce Clause, how does man-on-man rape within the confines of a state prison?

The answer is that it's not about commerce, but about Congress's power to enforce rights under the Fourteenth Amendment. That's not invoked by ordinary rape -- but when states permit, or, in California Attorney General Bill Lockyer's case, encourage prison rape as a tool of policy, and it's quite clear that they do -- then it becomes a federal issue.