With the high-profile murder of Laci Peterson and her unborn
son, Conner, President Bush hit the stump to urge Congress to pass
the Unborn Victims of Violence Act, a bill that would make harming
or killing a fetus during the commission of certain federal crimes
an additional no-no.
Many states, such as California — as Scott Peterson has
discovered the hard way — currently have such provisions, allowing
prosecutors to stick it to suspects while offering a measure of
justice to oft-disregarded members of our society. Supportive of
such statutes, the bill’s sponsor, Sen. Mike DeWine, R-Ohio, says
there ought to be a federal law, as well.
“As a civilized society, we must take a stand against violent
crimes against children — especially those waiting to be born,”
said DeWine when introducing the measure on the Senate floor last
week.
There is much to be said for such a law. But it does not deserve
unquestioning support.
The U.S. legal system was designed to be decentralized.
Proposals for any federal crimes beyond those delineated in the
Constitution should cause brows across the republic to elevate at
least a skosh.
“There is one transcendent advantage belonging to the province
of the State governments which alone suffices to place the matter
in a clear and satisfactory light,” notes Hamilton in Federalist
17. “I mean the ordinary administration of criminal and civil
justice.”
What was out of the ordinary, as far as the founders
were concerned? Not much.
“The Constitution only gives criminal justice powers over
certain, limited areas,” said Independence Institute scholar
David Kopel in an interview.
Limited, indeed. The Constitution mentions just three federal
crimes: counterfeiting, piracy and treason.
Beyond this, Congress is empowered by the necessary and proper
clause to create criminal categories for, say, nefarious deeds
conducted on federal property — besides the usual things like the
budget allocation for Tom Daschle’s Senate office space. But
anything not covered by this, as Kopel notes, is
“overfederalization,” a direct ribshot to the 10th Amendment, which
gives states sovereign control over criminal matters.
One immediate problem here is the creation of duplicate criminal
statutes, overlapping layers of law that target roughly the same
naughty behaviors, thereby possibly creating two sets of
prosecutors going after the same guy for the same crime.
Maintaining legal fictions that keep such occurrences from
becoming violations of the Fifth Amendment’s protection against
double jeopardy has been easy with complicit judges. Says Kopel,
“Courts have eviscerated the double jeopardy clause, basically
saying that if there is another sovereign, and there’s one point of
difference in the law[s between them], a second prosecution can be
brought. I think that’s clearly wrong and serves to nullify the
double jeopardy protection.”
Other problems exist as well.
Recently in Maryland, a federal prosecutor tried to beat a local
counterpart to the punch in a murder trial. But instead of trying
the suspect for murder, the fed wanted to try him for the only
applicable federal law in the case — extortion. The family of the
victim was outraged, and the local prosecutor appealed to the
Justice Department, which responded by saying the dueling
prosecutors should come to an “agreeable plan” between them. In
other words, the fed had the right to press his case if he
wanted.
He finally relented, but not because he had a late-night
Founding-Fathers epiphany while sipping a Sam Adams. His position
just looked bad in the press.
In another recent Maryland case, the same federal prosecutor
picked up a local murder mainly because a federal jury could drop a
bigger hammer on the suspect than state law.
Conservatives might be tempted to defend the federalization of
criminal law based on such cases: See! The state law couldn’t
cut it. To get justice, sometimes people have to go to the
feds. Resist the temptation. The problems with restrictive
Maryland law only prove that Maryland law should be fixed, not that
the feds should get involved. To go that route justifies the
increasing federal involvement in all criminal areas and does
violence to the founders’ vision.
The Unborn Victims of Violence Act is benign enough that it
might not matter much in grand scheme of Leviathan’s bulging girth.
It only adds greater penalty to existing federal criminal law, but
it is part of a growing move to softly swaddle the republic in
ever-tightening strands of federal control.
During the Clinton years, calls for more federal crimes were
more frequent than reports of the president’s infidelities. Black
churches burn down, and suddenly state arson laws aren’t enough; we
need federal laws. A gay man is brutally murdered, and suddenly the
state homicide law doesn’t count; we need federal anti-hate
statutes (never mind that a state law against murder is implicitly
an anti-hate law; murder isn’t nice). Such laws went beyond the
constitutional pale and should have been opposed.
They were. But the trouble is, as dissenters turn proponents,
even for well-meaning causes, they hack away at their own
legitimacy to stand astride the next federal intrusion when it
comes barreling into town, sideswiping constitutional principles
all the way.
Our only defense will be in the unconvincing claim that our
violations of the national charter are better for the country than
the other guy’s.
Joel Miller (jmiller@wnd.com) is senior editor of
WND Books.
